in short kid/family asked if they were dairy free highly allergic... ate the pancakes appears to not be dairy free he forgets his epi pen and inhaler ... dies 3 days later
now if you are THAT allergic i would think u keep that pen on you at all times no?
Severe milk allergies are no joke. I have a friend who has them, and he can't even go into a Starbucks because of the airborne milk particles from foaming and steaming.
If trace amounts can kill you, the onus is on you to protect yourself.
18. "and they should not be held liable for cross-contamination " In response to Reply # 16
of trace amounts. You know how a loaf of bread might have a warning that says "processed in a facility that processed peanuts" or whatever? The boy and his family understood that their food was being cooked in a kitchen that uses dairy products.
29. "even if the restaurant is liable, the parents are far more liable " In response to Reply # 18 Tue Mar-17-15 11:45 AM by SoWhat
for allowing the kid to eat those pancakes under those circumstances w/o having his epi pen immediately available. a reasonable parent in that situation would've had the pen or wouldn't have allowed the kid to eat the pancakes w/o it due to the fairly high risk that the small town diner would end up cross contaminating the pancakes w/even a trace amount of dairy.
b/c it'd be at least slightly more reasonable for the parents to trust that facility's word about decontamination b/c that facility would likely have more experience w/the issue and would likely have better trained staff to handle it.
but the parents would still be primarily at fault for allowing the kid to eat the pancakes w/o having the epi pen immediately available. the whole point of the pen is to prevent the kid going into shock as he did after having eaten the pancakes at issue here.
47. "DOH regulations are determined by the locality" In response to Reply # 46
so no, there is no national foodservice standard. The closest thing to what I think you're referring to is FDA regulation and they wouldn't have jurisdiction here.
19. "that doesn't make them at fault though" In response to Reply # 16
there is more room for error in food service than there is for drug contamination
that drug has been tested...not just by the parents but by the companies that produce, market, sell, manufacture...
of course the drug company would be held liable because they are rightfully so held to a different standard
i'm not saying the restaurant didn't make a mistake but they really shouldn't be held liable for that
u have to properly police your own allergies...especially one that severe...even in the cleanest of kitchens you could spill a drop of milk in something and be not only unaware but unaware of the fatal impact it might have on someone
Let me sport my Air Hyperbole 2010s in peace. (c) ansomble
7. "Would you put your life in the hands of a minimum wage chef and waitress..." In response to Reply # 0
I feel like Fault is the wrong way to talk about it. I feel like "responsibility" is a better way to talk about it.
The family was in the best position to stop something bad from happening. I couldn't trust my life to a minimum wage waitress and chef.
I had this happen to a family friend. little girl spends the day with her grandmother. is offered a cookie at church, she asked her grandmother if it was okay to get the cookie. Didn't appear to have nuts in it but when she ate it she went into shock and died a few days latter.
the worst part is I think no one knew how bad the girls allegery was because if they thought her life depended on it she would have never left the house without her epi pen.
********** "Everyone has a plan until you punch them in the face. Then they don't have a plan anymore." (c) Mike Tyson
"One of the most important things in life is what Judge Learned Hand described as 'that ever-gnawing inner doubt as to whether you're r
13. "Been a vegan for a while, and I wouldn't have eaten at that place..." In response to Reply # 0
I realized some time ago that some people can't fathom cooking without eggs, milk, butter or meat products. I was burned far too many times with the "It doesn't have meat/dairy in it!" line. For me, my diet is a choice and I didn't take any chances with random places. For dude, his LIFE was on the line. Gotta put this one on the teen & parents.
17. "parents." In response to Reply # 0 Tue Mar-17-15 11:21 AM by SHAstayhighalways
i mean technically its the restaurants fault if they requested before hand that they needed the shit to be dairy free and they told them yes they're dairy free then they have a case as far as court goes but as a parent with a kid with allergies i definitely take responsibility for keeping my son away from the things he is allergic to when you eat out you take the risk of consuming things that are cross contaminated so in the end as a parent i'd feel guilty for taking my kid out and trusting the people at the restaurant to really care and also forgetting the epi pen is COMPLETELY their fault shouda just had pancakes at home. sad story.
30. "if the parents had had the kid's epi pen the kid wouldn't have died." In response to Reply # 26
the parents' negligence is an intervening cause of the kid's death, IMO. it should at least limit the restaurant's liability for giving bad info and/or failing at its decontamination.
40. "how do you know they were lied to?" In response to Reply # 36
they could have cleaned the area and the batter could have been dairy free and the risk of allergic reaction is still there when you have allergies that severe having an epi-pen with you at all times is IMPERATIVE any 'trace' can set people off if your allergy is severe enough if the kitchen has other diary things going on the risk of getting a 'trace' in the food is there my BIL's nephew couldn't even be in the same room as peanuts without having a reaction it is up to the people with the allergy (and their parents for kids) to always be prepared hell the dairy could have been on the table on the seat anything not necessarily in the food but dairy is served there so the risk is there and you have to take precaution
this shit is similar to being a pedestrian and looking both ways regardless of if you have the right of way because even if you have the right of way you can still get hit by a car the driver of the car can be wrong as fuck but you still ran the fuck over because you didn't look both ways.
54. "how do you know they weren't dairy free? did you make them?" In response to Reply # 50 Tue Mar-17-15 12:17 PM by PROMO
you're basically putting the onus on the restaurant for knowing how sensitive this kid's allergy is.
they could have done exactly what they said but because they didn't get whatever parts per million of dairy off the grill when they cleaned it the kid still got sick.
57. "tbh the form of transmission was never specified" In response to Reply # 50
the staff may have believed that they accommodated the request as best they could by cleaning everything down so they may have held a reasonable belief that the pancakes were daily-free. Employees can't control particles in the air anyways.
65. "the labels just put ppl on notice " In response to Reply # 60
that the product maker or facility has taken steps to reduce the amount of the allergen at issue in the product at hand. the labels are NOT a guarantee that the allergen has been completely removed. most products so labeled also contain a warning that the product was processed in a facility that also processes other allergens which is intended to put ppl on notice of the risk of cross contamination.
ppl who choose to eat the product or the served food item are assuming some risk that the food still has the allergen.
so even if the restaurant said the pancakes could be made and/or served dairy-free that wasn't a guarantee.
61. "they were not lied to " In response to Reply # 31 Tue Mar-17-15 12:34 PM by esb225
when making the pancakes no diary was used ... now it could have come from the plate it was on or any number of other points... the restaurant didn't say the whole place was diary free just the pancakes
to me if ur that fragile you should really plan a better place to eat and have ur meds.
64. "in Minnesota, parents may not recover from the restaurant" In response to Reply # 38
in this case if they were more than 50% at fault, i think.
IMO the parents were more than 50% at fault considering i believe if they'd had that pen the boy wouldn't have died. unless someone can convince me that the boy would've died after eating those pancakes even if he'd received his dose from the epi pen in time then i'll probably change my mind.
82. "Epi pens don't always save lives, " In response to Reply # 64
I don't carry one because I've only went into anaphylactic shock once in 30 years... And i didn't get a shot until hours after and I lived. A person may not know exactly how allergic they are until that once in a blue moon event happens... It may not have seemed necessary if his other reactions were mild.
27. "kid/family. if the restaurant went out of their way to give him..." In response to Reply # 0 Tue Mar-17-15 11:44 AM by PROMO
dairy-free food, then they did their job. they can't possibly be responsible because this kid is hyper, HYPER-sensitive to dairy.
there's only so clean you can be. seems like they tried for the kid. obviously we need more facts but based on what i read they (the family/kid) should have been prepared ESPECIALLY if the kid was THAT sensitive to his allergen.
35. "as much as I wanna ride for the diner" In response to Reply # 0
it really depends on the DOH regs in that town/state regarding food handling and allergies. It sounds like a small town so I wouldn't be surprised if they had next to no regulations on the books regarding these types of incidents.
It sounds like the diner did everything in their power to accommodate the allergy including having the cook clean the grill prior. The kid probably was being a kid forgetting momentarily the severity of his allergy just so he could be normal like his friends. A very unfortunate situation all around for everyone.
52. "i'm w/the diner b/c the parents should've had the pen w/them" In response to Reply # 35
due to the reality that the diner could've done everything in its power to decontaminate the kitchen and utensils and then prepared the pancakes and the boy still could've had that severe reaction due to some trace amount of dairy left somewhere in the decontamination process. which is why the parents are supposed to carry an epi pen for the boy and if they don't have the pen then they shouldn't have allowed him to eat strange food (they'd never had it and he'd never had it) at an unfamiliar restaurant knowing how allergic he is and how severe the reaction would be if he ate even a trace amount of dairy.
the restaurant could be blameless and the kid still could've had that reaction which wouldn't have resulted in shock and later death if the parents had just had that epi pen w/them as they're supposed to.
63. "oh I feel you 100%, I'm just basing this on my own experience" In response to Reply # 52
in the foodservice industry what I'm saying is that it will probably boil down to whatever DOH regulations are already in place. this will probably be a precedent case for that town.
there won't be any precedent set unless the case is reviewed by some appellate court after it's been through trial court*. if it even gets that far - there will likely be a settlement or dismissal before it goes so far. i say that b/c most civil cases are settled or dismissed before they get to trial.
and the relevant DOH standards may be used by one or both parties to establish the standard of care the restaurant should've used when decontaminating the kitchen.
* - precedent is an actual legal term. it basically refers to law made by certain courts in certain cases that must be followed by judges in later cases. only appellate courts can make this kind of law, generally. trial courts almost never do - and they only do so when answering questions of law not questions of fact. the issues in this case we're discussing are mostly questions of fact - what happened? who is at fault? those aren't legal questions. no precedent will be made when those questions are answered in a trial court. if the case is reviewed by an appellate court(s) after a trial or a dismissal (depending on why it was dismissed) then the appellate court might make new law depending on how it rules on the review.
44. "if the teen was with his friends...teen's fault" In response to Reply # 0
but as a parent even if the child carries his own epi pen i DAMN SURE will have one in my purse at all times
sh!t i keep on in my purse at all times now it's the parent's fault for not having the proper life saving medications on them at all times
the restaurant is liable since they have assurance
something similiar happened to me and wildchild we went to warmdaddy's i ordered her the catfish nuggets she started breaking out bad in hives after eating them
she is allergic to milk and eggs i asked them if they dipped the catfish in them the waitress said yes then came back and said no
honestly i wasnt upset they she had a reaction because i didnt ask (i dont fry fish so i didnt think of the milk/ egg use) i just wanted to know what was causing my child's reaction
basically their stories were changing we left but at this point i hate warmdaddy's for just not being honest
53. "If the allergies are that serious, why put your life on the line..." In response to Reply # 0
If trace amounts of a common ingredient will set off a reaction, then it's probably a good idea to keep the control in your own hands. Not the underpaid kitchen staff.
The Wordsmith Member since Aug 13th 2002 17070 posts
Tue Mar-17-15 12:23 PM
56. "Makes me think of the time I worked in a restaurant...." In response to Reply # 0
...where this one customer needed his steak to have no seasoning due to his allergies. The chef made sure to not season dude's steak but since he handled a number of steaks at the time, he forgot to not use the same tongs he used for the seasoned steaks. Dude ended up having to be carried out by ambulance (if memory serves me correctly).
Me personally, I'd probably avoid eating out if I had allergies that severe. Too risky when dealing with kitchens that normally don't have to be careful on that level. Cats may forget something due to habits and have you messed up.
he must have had a few emergencies by know to know CARRY YOUR DAMN EPI PEN AND INHALER but no depend on other people to ensure your well being ~~~~ When you are born, you cry, and the world rejoices. Live so that when you die, you rejoice, and the world cries. ~~~~ You cannot hate people for their own good.
71. "Family for not having the pen. " In response to Reply # 0
if it's not a restaurant FOR people with allergies where staff is specifically trained, it's not safe.
how you have a deadly allergy and don't have a pen on you at all times??
likely the pancake mix is purchased in bulk and is stored in huge containers and when asked if it has milk probably replied "no" meaning they don't add MILK to the mix, but water. (many gluten-free mixes take water and eggs only) but more often than not the mix itself has powdered milk IN it. most who take water only have powdered milk.
im sure the ingredients aren't listed on the bulk containers.. and the family should have known better considering he is a teen and they've been dealing with this for many years. it is EXTREMELY hard to find gluten,soy and dairy free products (i have several children at my preschool with severe allergies, one with milk allergy and epi pen).
i do the shopping and i know how hard it is to find mixes that don't have dairy. we have to make his pancakes special out of biscuit mix separately from the other kids food because I can't find a good mix that also is soy-free (that's his other allergy).
it's a tragic situation, but he would not have died if they had their epi pen on them.
they maybe could have sued for the staff being wrong and causing him to have a reaction, but not for him dying.. that's on them.
77. "If you have an allergy and walk out the house without an epipen" In response to Reply # 0
You're pretty stupid.
My nephews have nuts and shellfish allergies and I won't even taken them to the park down the street without an epipen.
It's not even what THEY ingest, if they play with a kid who had a peanut butter and jelly sandwich for lunch their airway will start to close up from those trace amounts... I've see. It happen. Both of them have to sit at the peanut-free table at school during lunch.
When we go out to eat we notify the servers about their allergies but mistakes happen. You have to be vigilant.
Once I ordered a big brownie sundae for the table and when the waiter brought it out my oldest nephew got up and ran across the restaurant. We were like "where are you going?!?!" And he screamed something about peanuts. Sure enough there was an errant peanut on the sundae. Just one but it was enough to make that kid bolt for the door and ask for us to stop for Benadryl on the way home "just in case" (his words).
Now if a 6 year old can be that responsible, why can't two grown ass parents?
~~~~~~~~~~~~~~~~~~~~ The Green Mile is a movie where the magical black man wrongly dies and the white man who let it happen lives forever.
The Wordsmith Member since Aug 13th 2002 17070 posts
Tue Mar-17-15 04:02 PM
79. "The cook could've taken all kinds of precautions and an issue..." In response to Reply # 0
....could've still came up. A mere splash of milk or a small crumb of cheese from nearby could easily contaminate a dish.
It's not like their kid's allergic reaction is a non life threatening one where he would be only breaking out in an itchy rash that clears up in a day or two. At least then they may be able to take some risk.
If anything, they should've looked for a vegan restaurant or just packed the kid his own meal. Of course they should've brought his meds like they're supposed to. Severe allergies like that are way too risky to be half stepping.
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