Saskatoon StarPhoenix

Man wins lawsuit over nutty cheesecake reaction

- JANET FRENCH

A ruling by a Saskatoon judge has set a new precedent that puts an onus on restaurant­s to keep patrons with food allergies safe.

An American who visited Saskatchew­an in 2006 won a lawsuit last month against a waitress and former owners of a small-town Travelodge Hotel for serving him cheesecake containing nuts after he told the server he was allergic.

“I think it’s good history; I think it’s good case law, and I think was a win for all (allergic) people,” says Brian Martin, the 39-year-old Fargo, N.D., man who suffered a lifethreat­ening anaphylact­ic reaction in Melfort, 175 kilometres northeast of Saskatoon.

“If what we did can save one person, I would be happy with that,” an emotional Martin said from Fargo on Wednesday.

In September 2006, Martin was in Melfort on a goose-hunting trip with five friends. Saskatoon Queen’s Bench Justice Grant Currie found when he and two friends stopped for lunch at the hotel restaurant, Martin twice asked a waitress if the caramel apple cheesecake contained nuts, and told her he was allergic to nuts. Waitress Georgina Geddes told him there were no nuts in the cheesecake. However, she didn’t read the ingredient­s list on the box.

After one bite, he could tell the cake contained nuts, and headed for the nearest hospital. He didn’t use his potentiall­y life-saving adrenalin-containing needle because he heard the hospital was a two-minute drive from the hotel.

He spent four hours in the emergency room struggling to breathe, with a rash and burning sensation over his entire body, and even lost consciousn­ess at one point.

“During this experience, (Martin) thought that he was going to die and, indeed, when he asked the doctor about dying, the doctor was unable to assure him that he would survive,” Currie wrote in his June 27 decision. Martin began to recover after several hours, when his body finally responded to medication.

Currie also notes that after the reaction, one of his friends was easily able to find the cheesecake’s box, which listed walnuts as an ingredient.

“What is important to the customer with a food allergy is that the server knows that the customer needs an accurate answer to a question about the ingredient­s in food,” Currie said.

After finding both the waitress and hotel’s former owner, Interbooks Ltd., liable, Currie awarded Martin $25,000 in damages, plus about $1,500 for Martin’s medical expenses at the Melfort hospital.

However, Currie did not grant any damages for long-term health problems Martin says stem from the incident. Martin, a mechanical engineer who has been diagnosed with post-traumatic stress disorder and suffers headaches and other chronic problems, asked for $1 million for past and future lost income.

The damages disappoint­ed Martin, who said he has spent nearly $182,000 on legal costs so far. He’s too broke to appeal the ruling, he said. The parties have yet to appear in court to argue who should pay the legal costs in the case.

Shannon Metivier, counsel for the waitress and former hotel owners, said she’s not aware of any other Canadian case where a restaurant was found liable for a customer’s allergic reaction.

“There will be other cases that arise as a result of this one,” Metivier said.

“The courts will need to determine, in those cases, how far that duty of care owed by restaurant­s extends, because each fact situation is unique.”

Other Canadians have launched suits against food servers following allergic reactions: the family of a Halifax teenager who died after eating a sample cookie at a grocery store in 1995, and in 1992, a 20-year-old Cambridge, Ont., woman, who had to be revived after eating a doughnut not labelled to contain peanuts. The cases dropped off the map, suggesting they were settled out of court. Marilyn Allen, a consultant with Anaphylaxi­s Canada with expertise in the food service industry and manufactur­ing, says the ruling is a double-edged sword.

“I am absolutely pleased that the duty of care will now be on the restaurant­s,” she said. But she worries they will now see food-allergic customers as a liability and deny them service.

“I’m asking for this to be a mes-sage to the provinces,"" said Allen, whose daughter died of an allergic reaction in 1990.

“We need to require (service) people to have adequate food safety training, or adequate food allergy training.”

Restaurant­s need to designate a manager or chef to take charge when a customer says he or she has an allergy, be aware of the ingredient­s in their supplies and take steps to prevent cross-contaminat­ion in the kitchen, she said.

Bruce Wirth, Martin’s lawyer, said the decision means restaurant owners will need to ensure their workers understand the seriousnes­s of food allergies.

“(They) will need to instruct servers that if a customer advises that (she or he) has a food allergy, the server has a legal obligation to ascertain the ingredient­s of the food that the customer is asking about,” he said.

Allen says people with allergies, too, have a responsibi­lity to advocate for themselves when dining out.

“You can’t possibly put your life in the hands of people who are serving a table,” she said.

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