# Man Dies After Ruby Tuesday Serves Him Wrong Dish



## Aera (Jul 8, 2008)

This is very sad. 

*LOVEJOY, Ga. — A man with a shellfish allergy is dead after eating an entree with crab at a restaurant.*
An autopsy Monday confirmed that 35-year-old Rodney Hawkins went into anaphylactic shock and died after eating the dish at a Ruby Tuesday restaurant in Lovejoy last week.
Georgia Bureau of Investigation spokesman John Bankhead said Hawkins had ordered a chicken dish that contained no shellfish but was served another chicken dish that contained crab.
But Rick Johnson, spokesman for the Marvyille, Tenn.-based Ruby Tuesday company, told The Associated Press on Tuesday that the server's order pad and the kitchen ticket indicate that Hawkins ordered the Chicken Oscar, a dish with crab meat.
Johnson called the situation "tragic" and expressed condolences for Hawkins' family.

FOXNews.com - Man Dies After Ruby Tuesday Serves Him Wrong Dish - Health News | Current Health News | Medical News


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## jkath (Jul 8, 2008)

Oh that's just horrible.


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## jennyema (Jul 8, 2008)

This is how Ruby Tuesday's menu describes "Chicken Oscar."  I really doubt that he ordered it.

*"Chicken Oscar* 
Tender jumbo lump crab meat with asparagus tips and lemon-butter sauce atop a fresh grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes."

This is a tragedy and also a *reminder for those with food allergies to ALWAYS carry an epipen.*


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## Callisto in NC (Jul 8, 2008)

While I feel bad for the man and his family, I must also wonder if he told the server very specifically he had a life threatening shellfish allergy.  If he notified the server and then ordered a dish that included shellfish, and she didn't point it out to him, then it would be the restaurant's fault.  Generally people with severe allergies will alert the hostess and the server.


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## quicksilver (Jul 8, 2008)

How horrible.
The crab is put on top though. (I just read about this recipe last week, but with veal)
I don't know how the diner could have mistaken it, even if the waitperson screwed up.
There's alway so much more to these stories than what's reported.
And yeh, you would think, re: reminder jenny gave.
​


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## B'sgirl (Jul 8, 2008)

That is horrible! It does seem strange that he wouldn't have noticed or tasted crab in the dish. But the menu just says crab _meat_, so maybe it was shredded and hard to see.  The waitress could easily have written it down wrong. My son can't eat gluten and I know I'd be furious if someone got his order wrong like that. Of course, for him it wouldn't be life-threatening. It would just make him sick.


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## bowlingshirt (Jul 8, 2008)

My wife has seafood allergies and is always EXTREMELY  careful when we go out to eat anywhere.  We've had a waitress get our orders reversed before, and of course I had seafood in mine.  Her nose is very sensitive when it comes to seafood, so she can always sniff it out before eating anything.


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## ChefJune (Jul 8, 2008)

B'sgirl said:


> That is horrible! *It does seem strange that he wouldn't have noticed or tasted crab in the dish.* But the menu just says crab _meat_, so maybe it was shredded and hard to see. The waitress could easily have written it down wrong. My son can't eat gluten and I know I'd be furious if someone got his order wrong like that. Of course, for him it wouldn't be life-threatening. It would just make him sick.


 
By the time he noticed or tasted it, he could already have been in shock.  It can happen just that fast.  I am just that allergic to kiwifruit.

And the restaurant will be liable, in any case, unless they can prove that the man purposely ordered the dish to commit suicide!


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## Callisto in NC (Jul 9, 2008)

ChefJune said:


> By the time he noticed or tasted it, he could already have been in shock.  It can happen just that fast.  I am just that allergic to kiwifruit.
> 
> And the restaurant will be liable, in any case, unless they can prove that the man purposely ordered the dish to commit suicide!


Legally they'd only be liable if he informed them beforehand of his allergies.  If he did not, they have no liability.  

I get a bad reaction to banana peppers and when I go to Subway I make the prep guy change his gloves before I get my veggies.  If I forget, it's not Subway's fault but if I ask and they refuse, then it is.  There's no indication in the story that the man informed them of his allergy.


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## Uncle Bob (Jul 9, 2008)

Jennyema said:
			
		

> *This is how Ruby Tuesday's menu describes "Chicken Oscar." I really doubt that he ordered it.*
> 
> *"Chicken Oscar *
> *Tender jumbo lump crab meat with asparagus tips and lemon-butter sauce atop a fresh grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes."*
> ...


*__________________*

I doubt he ordered this too! I wonder if he meant to order Chicken Fresco??? I wonder how he didn't know (see/taste) the difference between tomatoes, and crab meat/asparagus tips on the chicken breast??? Then again...maybe he did, and like Chef June said...It was already to late....


*Chicken Fresco*....From Ruby Tuesday's Online Menu
A fresh, grilled chicken breast topped with seasonal vine-ripened tomatoes, lemon-butter sauce, and a splash of balsamic vinaigrette. Served with fresh, steamed broccoli and mashed potatoes.


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## GotGarlic (Jul 9, 2008)

Callisto in NC said:


> Legally they'd only be liable if he informed them beforehand of his allergies.  If he did not, they have no liability.
> 
> I get a bad reaction to banana peppers and when I go to Subway I make the prep guy change his gloves before I get my veggies.  If I forget, it's not Subway's fault but if I ask and they refuse, then it is...



If you ask, and they refuse, and then you eat what they prepare anyway, how is that their fault? You would have knowingly exposed yourself to something that you know causes a bad reaction.

According to his wife, he ordered Chicken Fresco: Man Dies After Eating Seafood - Atlanta News Story - WGCL Atlanta


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## Callisto in NC (Jul 9, 2008)

GotGarlic said:


> If you ask, and they refuse, and then you eat what they prepare anyway, how is that their fault? You would have knowingly exposed yourself to something that you know causes a bad reaction.
> 
> According to his wife, he ordered Chicken Fresco: Man Dies After Eating Seafood - Atlanta News Story - WGCL Atlanta


Who said I'd eat it?  If I ask and they refuse, I take the sandwich and call my SIL who is a rep for Subway. However, you miss the point.  

My point is did he TELL them he was allergic to seafood or did he even know?  





> If you look at the story you linked it says:  died after having an allergic reaction while* eating what he thought *was crab meat at a Ruby Tuesday


If he was allergic and was eating what he thought was crab, how is it the restaurants fault?  Did he know he had an allergy or not? The story and statements are very conflicting in that news story.  

I still believe from what is there, he didn't tell the restaurant about his allergies.  My neighbor works at Ruby Tuesday and asked her protocal IF someone has allergies.  She said they make a note in the computer and will question if someone orders something they are allergic to.  So did he inform anyone?  Doesn't sound like it.


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## GotGarlic (Jul 9, 2008)

Callisto in NC said:


> Who said I'd eat it?  If I ask and they refuse, I take the sandwich and call my SIL who is a rep for Subway.



You said: "If I forget, it's not Subway's fault but if I ask and they refuse, then it is."

For "it" you're referring to is exposure to an allergen that causes a reaction. You can only get that if you eat the food.



Callisto in NC said:


> However, you miss the point.
> 
> My point is did he TELL them he was allergic to seafood or did he even know?
> If he was allergic and was eating what he thought was crab, how is it the restaurants fault?  Did he know he had an allergy or not? The story and statements are very conflicting in that news story.
> ...



He knew. From the story:



> “We just don't understand. It's hard to understand. It wasn't a car accident, he didn't have cancer. It was a meal, a mix-up with a meal,” said sister Yolanda Davis.
> 
> Davis said her brother ordered the chicken fresco dish. But instead, she said, he received a seafood dish. She said Hawkins would never order seafood since he's allergic to it, and seafood could kill him.



His wife, who was at the restaurant with him, said he ordered chicken fresco, not chicken oscar.

It's possible he didn't realize there was seafood in it until he started eating it, then said something to his wife, and then the reaction started and he went into shock. I'm not sure whether the restaurant is liable or not - I don't know the law that well.


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## CharlieD (Jul 9, 2008)

I'm sure will hear more about this. And maybe even hear the whole story. 

I was always mad about coffee from McD story, until recently I learned the whole story. Even though the woman was stupid enough to put the cup between her legs it was the discrenatal emploee who turned the heat in the coffee pot so hot that her skin melted.

So until we know the whole story here, there is nothing that we can say or decide.


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## Callisto in NC (Jul 9, 2008)

GotGarlic said:


> He knew. From the story:
> 
> His wife, who was at the restaurant with him, said he ordered chicken fresco, not chicken oscar.
> 
> It's possible he didn't realize there was seafood in it until he started eating it, then said something to his wife, and then the reaction started and he went into shock. I'm not sure whether the restaurant is liable or not - I don't know the law that well.


The story, as I previously pointed out, says he thought he was eating crab.  I further indicated the story disputes itself in what it says.  

My issue is DID HE TELL THE RESTAURANT.  Point blank, that's the only issue here, not what Subway does with my sandwich.  Did the man tell the restaurant and why does the story say "after eating what he thought was crab."  Well if he thought it was crab, why was he eating it?


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## GotGarlic (Jul 9, 2008)

Callisto in NC said:


> The story, as I previously pointed out, says he thought he was eating crab.  I further indicated the story disputes itself in what it says.
> 
> My issue is DID HE TELL THE RESTAURANT.  Point blank, that's the only issue here, not what Subway does with my sandwich.  Did the man tell the restaurant and why does the story say "after eating what he thought was crab."  Well if he thought it was crab, why was he eating it?



I know what your issue is  I don't know whether he told the restaurant about his allergy, and I'm not as sure as you seem to be that that's the only factor that matters.

You seem to have missed my other point: It's possible he didn't know he was eating crab *until after he started eating it*. Maybe, after taking a bite or two, he said to his wife, "You know, I think there might be crab in this." Then he could have started having the reaction, which might, or might not, very quickly turn to shock. Allergic reactions are highly variable in how quickly and how severely they progress.


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## middie (Jul 9, 2008)

Oh how horrible.


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## Callisto in NC (Jul 9, 2008)

GotGarlic said:


> I know what your issue is  I don't know whether he told the restaurant about his allergy, and I'm not as sure as you seem to be that that's the only factor that matters.
> 
> You seem to have missed my other point: It's possible he didn't know he was eating crab *until after he started eating it*. Maybe, after taking a bite or two, he said to his wife, "You know, I think there might be crab in this." Then he could have started having the reaction, which might, or might not, very quickly turn to shock. Allergic reactions are highly variable in how quickly and how severely they progress.



My point (I certainly won't use the word issue) is the article states he was eating what he thought was crab.  Why was he eating it if he thought it was crab.  Going by knowledge only provided in the article and of Red Robin's procedure, I do not see how the restaurant is liable.  I'm basing my thought process on the article and procedural knowledge.  If he told the server and hostess "no seafood" and the server believed he ordered the dish with crab, she would have questioned his order.  If she did not, the kitchen would have IF he had properly informed the restaurant.  

I stand by my belief, the restaurant is not liable.


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## GB (Jul 9, 2008)

Are we talking about the article in the first post? If so then no where in that article does it say the man was eating what he thought was crab.

Even if it did say that, you would not know if his knowledge came before or after he put the food in his mouth. If the article said "the man was eating what he thought was crab" that could mean that he ordered what he knew to be crab or it could mean that he ordered chicken and took a bite and then "knew" that he was eating crab once it hit his tongue and he tasted it or had a reaction.


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## GB (Jul 9, 2008)

Callisto in NC said:


> Going by knowledge only provided in the article and of Red Robin's procedure, I do not see how the restaurant is liable.


Just because they have a procedure does not mean it was followed.


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## Callisto in NC (Jul 9, 2008)

GB said:


> Are we talking about the article in the first post? If so then no where in that article does it say the man was eating what he thought was crab.


No, the article in a later post.


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## GB (Jul 9, 2008)

OK I see it now. Even still, it does not say _when_ he knew he was eating crab. It could have very possibly been that he put it in his mouth and _then_ knew he was eating crab, which at that point would be too late.


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## Bigjim68 (Jul 9, 2008)

CharlieD said:


> I'm sure will hear more about this. And maybe even hear the whole story.
> 
> I was always mad about coffee from McD story, until recently I learned the whole story. Even though the woman was stupid enough to put the cup between her legs it was the discrenatal emploee who turned the heat in the coffee pot so hot that her skin melted.
> 
> So until we know the whole story here, there is nothing that we can say or decide.


I disagree with your assessment of the overheated coffee in the MD story.  Water boils at 212 degrees, and will not get hotter unless it is pressurized.  I make coffee at boiling temperature, and expect it to be served hot.  On the other hand, I do not put paper cups of hot liquids between my legs and drive off.  Unless the patron informed MD's that she was going to put the coffee between her legs and wanted cold coffee.  I do not see how a restaurant should be responsible.  I'm not sure about the subject story.  Seems to me that I were deathly allergic to something, I would be positive that I was not eating it.  If I ordered a chicken dish without seafood, and got crab, not vegetables, I somehow feel I would have been suspicious and checked before I tasted the dish.  Too often people sue first and ask questions later, and we all pay.


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## Barbara L (Jul 10, 2008)

If he was allergic to seafood, I couldn't imagine he would eat it if he knew beforehand that it had crab in it. I would think he would be able to smell crab.

My thinking is that if the man did not tell the server that he was allergic to seafood, and the restaurant is found liable, things could drastically change at restaurants. I can picture people having to fill out and sign a survey or statement naming all foods, spices, drinks, etc. that they are allergic to, before being seated. 

I know someone who cannot go to most of the steak restaurants around here when she has her kids with her because most of them serve buckets of peanuts. Her son is so allergic to peanuts that he had a bad reaction when someone who had eaten a peanut butter sandwich earlier kissed him on the cheek. At age seven he is aware of what he can and cannot eat, and he is not afraid to ask questions. He doesn't automatically trust that something doesn't have peanuts just because someone says it doesn't. I know he has asked me to read the label of something I offered him. Another boy, who was in my 4th grade class a few years ago, was the same way. If the school cafeteria served something different, he asked the cafeteria manager what was in it, and he specifically asked about peanuts. If we had a class party, he checked the ingredients out. And when we did our "How to Make a Peanut Butter and Jelly Sandwich" paper, he wrote about making a jelly sandwich, and when the class got to make their sandwiches, when they had finished their papers, he made a jelly sandwich. Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.

Barbara


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## krichardson (Jul 10, 2008)

As someone who has a serious allergy to food, I would like to share my opinion. When I eat out at restaurants if the dish I order does not have avocados in it I never mention that I am allergic to them. I assume that I will receive the dish that I ordered as is off the menu. I think that the restaurant should be liable if the dish that the customer ordered is not the dish that they received. I know that for me personally I have only reacted to avocados 3-4 times in my life. However each reaction has been significantly worst than the last. I also know that my body tells me immediatley that something is not right in what I am eating, and I will stop eating. However one bite will make me ill. (The last reaction was 3 years ago and after 2 small slices anaphalatic shock started.) Anyways I feel that if the restaurant got the order wrong, it's there fault. I would sound like a crazy person if everytime I ordered food I told the server, by the way no avocado, mango, banana, kiwi, or chestnut please, when there is none of that in the dish to begin with. If the customer ordered a dish with seafood and did not mention his allergy then he is to blame, but otherwise he was ordering a dish he could eat with no problem. (he should have been carrying an epi pen though!)


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## jennyema (Jul 10, 2008)

Barbara L said:


> Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.
> 
> Barbara


 

The menu clearly stated the ingredients in their chicken dishes.

Supposedly read the menu, which listed all the ingredients, and ordered one *without* crab:  

_"Chicken Bella _
_Slices of sautéed baby portabella mushrooms and artichokes in Parmesan cream sauce over a fresh, grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes."_

He could have verified that the dish didn't have crab in it by asking the server or the manager.  Both would have assured him that the dish he ordered had no crab in it. 

But he was served the wrong dish.  *A dish very similar in appearance to the one he ordered.*

_"Chicken Oscar _
_Tender jumbo lump crab meat with asparagus tips and lemon-butter sauce atop a fresh grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes"_

We have no idea what the crab looked or smelled like when it was sitting atop that chicken.  It may have been under another garnish.  He obviously didn't realize there was crab on it.  *If you know you are very allergic to something you are not knowingly going to eat it.*

He probably took a bite and thought "Oh Crap!!"


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## elaine l (Jul 10, 2008)

I think if I had a serious allergy to any food I would tell my server so that extra care could be taken not to give me the wrong dish or for cross contamination.  My niece's bf has an allergy to nuts and I was made aware of it when they started dating.  

It is a shame that happened.


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## mozart (Jul 10, 2008)

OK, I'm not a lawyer, so this is just an opinion.  I think Callisto is on the right track.

The courts have ruled that restaurants are not always liable when food is not served as ordered.  For example, if you get clam shells fragments in your clam chowder, or bones in your fish, or pits in your cherry cobbler.  The reasoning is that these items are a natural part of the food, so a patron has to assume they may be present and take precautions.  Even when the patron asks beforehand, "Is there bones in your fish?", the restaurant has not been held liable.

Is there anyone on this site who hasn't ordered at a restaurant and gotten the Wong dish?  I have on more than one occasion.  Even more common would be to say, "Give me ______, but no onions or tomatoes."
Maybe a 1000 times for that one.

I think a normal, reasonable person has to assume that a restaurant may not follow their ordering instructions and be prepared to take whatever the appropriate action is.  For most of us, that is either accept  it, or send it back.  Again, maybe I just pull the onions or tomatoes off and eat it.

However, suppose I'm allergic to even a small amount of onion or tomato juice, that will obviously be left on the dish?  Then, of course, I send it back and tell the waitress that I am highly allergic.

It is my opinion, and not as a lawyer, that the court may well find that someone who is aware that they have an acute allergy to a food, has an obligation to inform the restaurant personnel when ordering and perhaps even a further obligation to inspect their served food for that particular item.

Chicken Oscar and Chicken Fresco, as described, would not seem to be hard to distinguish from one another, BEFORE that first bite.


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## Callisto in NC (Jul 10, 2008)

Barbara L said:


> Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.
> 
> Barbara


This was my thought too.  I know kids with the peanut problem.  They tell the server at every restaurant, and they don't look like freaks at all, because nuts can be in things you don't even think about.  Restaurants who use peanut oil can "cross contaminate" (for lack of a better word) utensils from the peanut to the regular, tongs for example.  The same can happen with fish products.   If someone is that allergic to the point it will kill them, they won't look like a freak telling the server, they'll look conscientious.


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## Callisto in NC (Jul 10, 2008)

mozart said:


> OK, I'm not a lawyer, so this is just an opinion.  I think Callisto is on the right track.
> 
> Chicken Oscar and Chicken Fresco, as described, would not seem to be hard to distinguish from one another, BEFORE that first bite.


Thanks mozart.

Another thing that we'll never know is did he really order fresco and not be understood.  I have relatives in New York who say things and I'm like WHAT?  Oscar and Fresco can sound very similar.  If he had informed the restaurant of the allergy and the server heard "oscar" she could have, would have questioned the order or at least clarified.  How many times have you said something and been heard saying something else?  It's happened to me.  

I don't think it's about what's ordered by the person either.  Not all menus list each and every item in a dish.  I know a lot of times at Mexican restaurants I find hidden treasures not mentioned on the menu.  Sure, in this case the Chicken Oscar says "crab" but not every restaurant menu is like that.  

Err on the side of caution, always tell your server about your allergies.


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## jennyema (Jul 10, 2008)

mozart said:


> OK, I'm not a lawyer, so this is just an opinion. I think Callisto is on the right track.





mozart said:


> The courts have ruled that restaurants are not always liable when food is not served as ordered. For example, if you get clam shells fragments in your clam chowder, or bones in your fish, or pits in your cherry cobbler. The reasoning is that these items are a natural part of the food, so a patron has to assume they may be present and take precautions. Even when the patron asks beforehand, "Is there bones in your fish?", the restaurant has not been held liable.
> 
> Is there anyone on this site who hasn't ordered at a restaurant and gotten the Wong dish? I have on more than one occasion. Even more common would be to say, "Give me ______, but no onions or tomatoes."
> Maybe a 1000 times for that one.
> ...


 


I am a lawyer and I think this is probably more complicated than this.

Certainly the plaintiff's negligence action would be stronger if he or she informs the restaurant of their allergy before ordering. But  think a reasonable person has the right to assume that a restaurant will serve them the food as described and as they ordered it. If a menu lists the ingredients in a dish, I think you have the right to assume that those are the only ingredients used. If you know it is safe for you to eat those things, and you order what is safe for you, then I think you can make a pretty good argument that the restaurant is negligent if they serve you something different, whether you inform them of a food allergy or not.  

You might even try an "eggshell plaintiff" argument. Eggshell skull - Wikipedia, the free encyclopedia

Of course I could argue the other side, too.

My point is that it's not so cut and dried and courts will always differ.  A court in Oregon could find for the plaintiff and a court in Iowa could find for the defendant using exactly the same fact pattern.

But I am guessing that the vast majority of food allergy cases are settled and not litigated


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## ironchef (Jul 10, 2008)

Bigjim68 said:


> I disagree with your assessment of the overheated coffee in the MD story. Water boils at 212 degrees, and will not get hotter unless it is pressurized. I make coffee at boiling temperature, and expect it to be served hot. On the other hand, I do not put paper cups of hot liquids between my legs and drive off. Unless the patron informed MD's that she was going to put the coffee between her legs and wanted cold coffee. I do not see how a restaurant should be responsible. I'm not sure about the subject story. Seems to me that I were deathly allergic to something, I would be positive that I was not eating it. If I ordered a chicken dish without seafood, and got crab, not vegetables, I somehow feel I would have been suspicious and checked before I tasted the dish. Too often people sue first and ask questions later, and we all pay.


 
+1

That lady was just a moron. If you put a cup of hot coffee between your legs and then burn yourself, you deserved to get burned for doing something as stupid as that.


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## B'sgirl (Jul 10, 2008)

Someone with food allergy may not want to state it everywhere he goes as if it is a handicap or something. My son has Celiac, and even though he is just little, I doubt he as he gets older he wants to tell everyone everywhere he goes that he can't have gluten. He will want to live as normal a life as possible. He should be able to order a salad with no dressing or croutons without having to inform the waitress that if he eats anything that has touched a crouton his stomach will bloat and he will have diarrhea for the next two days.


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## GB (Jul 10, 2008)

Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?

The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.


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## ironchef (Jul 10, 2008)

Like Callisto pointed out, I think the key is whether or not the patron informed the restaurant before hand of his allergy, or just ordered a dish because it didn't have crab on it. Right now, it's a "he said, she said" situation. The problem is if he didn't inform the restaurant, he also was taking a possible chance with any cross contamination. Even if he supposedly ordered a dish with no crab on it per se, there could still have been traces of crab with the tongs, cutting board, plate, etc. etc. 

If I had a food allergy that was so severe, I would definitely inform the restaurant to ensure that any food that I ordered would not come into any contact with anything that would set off my allergy. This would also help to ensure that the food handlers would be extra careful when preparing my food. If we are informed of a diner with severe allergies, we get a clean cutting board and prepare their dish from scratch. If any part of their dish needs to be deep fried, we may heat up a sauce pot with fresh oil depending on their allergy.


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## ironchef (Jul 10, 2008)

B'sgirl said:


> Someone with food allergy may not want to state it everywhere he goes as if it is a handicap or something. My son has Celiac, and even though he is just little, I doubt he as he gets older he wants to tell everyone everywhere he goes that he can't have gluten. He will want to live as normal a life as possible. He should be able to order a salad with no dressing or croutons without having to inform the waitress that if he eats anything that has touched a crouton his stomach will bloat and he will have diarrhea for the next two days.


 
Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.


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## ironchef (Jul 10, 2008)

GB said:


> Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?
> 
> The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.


 
I don't think it's an issue if you're going to a specialty restaurant like an ice cream parlor or a pizza joint that doesn't have any crab on their menu. Like you said, common sense plays a part. However, if you're going to full service restaurant, then precautions need to be taken. Many places double the cold foods station as salad/cold apps and desserts, so yes, there COULD be a possibility of cross contamination between say, a crab louie and your ice cream sundae.


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## GB (Jul 10, 2008)

ironchef said:


> Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.


Depending on the severity of the allergy cross contamination might not be enough to trigger a reaction.


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## B'sgirl (Jul 10, 2008)

ironchef said:


> Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.



Yeah, we know about cross contamination alright. It's a pain to work around sometimes. I suppose mentioning it to the restaurant would depend on how severe the problem is. If it was a life/death thing I'd be sure to mention it.


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## GB (Jul 10, 2008)

ironchef said:


> I don't think it's an issue if you're going to a specialty restaurant like an ice cream parlor or a pizza joint that doesn't have any crab on their menu.


The point is though that you can never be 100% sure unless you ask. I have seem (as I am sure you have) ice creams that had flavors in them that you would not expect. Wasn't it Iron Chef that had a trout ice cream? Now if you go into one of these ice cream places that had 50 or 60 or more flavors and you don't happen to read every single one then for all you know their could be a crab bisque ice cream on the menu. You really can never be sure unless you ask and even them you are relying on someone who may or may not give you accurate info.

I know if I had an allergy as severe as this guys then I would try to be as vigilant as possible when ordering out. From time to time I am sure I would take reasonable chances though. It would get very old very quick telling every restaurant or eatery I go to that I am  allergic to xyz. From time to time I would take the change and not say anything assuming that the menu is accurate and I will be safe. It is no doubt not the safest thing, but I am human afterall and will act like normal humans act.


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## mozart (Jul 10, 2008)

jennyema said:


> I am a lawyer and I think this is probably more complicated than this.
> 
> Certainly the plaintiff's negligence action would be stronger if he or she informs the restaurant of their allergy before ordering. But think a reasonable person has the right to assume that a restaurant will serve them the food as described and as they ordered it. If a menu lists the ingredients in a dish, I think you have the right to assume that those are the only ingredients used. If you know it is safe for you to eat those things, and you order what is safe for you, then I think you can make a pretty good argument that the restaurant is negligent if they serve you something different, whether you inform them of a food allergy or not.
> 
> ...


 
"I am a lawyer and I think this is probably more complicated than this."

Yeah, it always is

Everything I've read says the restaurant has the order pad, the kitchen ticket, and the computer order all saying Chicken Oscar.

While I agree, Ruby Tuesdays will likely settle for monatary damages, that doesn't mean they are liable, only that they don't want further publicity than necessary.

The main point is, the relatives are saying "they want RT to change something so this won't ever happen again." Without the man telling them of his allergy, what they are really saying is they want all restaurants to never make an ordering mistake again. That is not going to happen.

In the end, the only logical, practical fix is that folks who know they have acute allergies must let the restaurant know, and carry an EPIPEN.

Let me ask you a hypothetical. Would the restaurant been protected if they had posted a sign saying, "If you have a food allergy, let your waitress know?


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## mozart (Jul 10, 2008)

GB said:


> Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?
> 
> The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.


 
Hi GB:

We are talking degree here.  Unless there was a crab based ice cream on the menu than of course he needn't tell.

We are also talking about the degree of allergy.  An allergy that makes you sick for a while is one thing, but most folks that have allergies to seafood know that it will kill them.  This puts a little more responsibility on them.   Mistakes happen.  If you or your kids had such an allergy, you would surely carry an EpiPen.

I don't disagree with folks who say you should get what you order.  But if your life is on the line, you can't just depend that stressed out folks in a restaurant won't make a mistake that can kill you


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## GB (Jul 10, 2008)

mozart said:


> Hi GB:
> 
> We are talking degree here.  Unless there was a crab based ice cream on the menu than of course he needn't tell.
> 
> ...


I do not disagree with anything you said here mozart. In the end, when it comes right down to it (and again I am not talking legalities here. That is for the lawers to fight about) it is the responsibility of the person with the allergy. No doubt about it.

Like you said, we are talking about degrees here. My ice cream example was meant to be extreme, but somewhere between ordering ice cream and ordering crab legs there is a gray area.


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## jennyema (Jul 10, 2008)

His wife claims he ordered the other chicken, not chicken Oscar.

Why would someone with a deadly allergy to crab _knowlingly_ order something with crab in it?

The fact that RT discloses the ingredients may hurt them here .... by who knows.

What the relatives are saying is "we want money."

I think it would help their defense if restaurants had a prominent blurb in their menu to this effect ...."If you have a food allergy, let your waitress know?"

But it may not absolve them of liability if someone doesn't tell them.


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## jennyema (Jul 10, 2008)

mozart said:


> I don't disagree with folks who say you should get what you order. But if your life is on the line, you can't just depend that stressed out folks in a restaurant won't make a mistake that can kill you


 

I agree with that entirely.  People should go out of their way to protect themselves if they have a life-threatening allergy.  But it doesn't mean the restaurant isn't responsible if they don't.


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## Callisto in NC (Jul 10, 2008)

GB said:


> Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?
> 
> The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.


If you are ordering food at a restaurant that cooks and serves the food you are allergic to, you should most definitely inform the restaurant.  It's not like an ice cream shop serves crab ice cream but a restaurant that serves a mix of safe and non-safe (to the allergic person) food should be advised and, quite honestly, why wouldn't you want to inform the server if for no other reason than your own safety.


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## Callisto in NC (Jul 10, 2008)

jennyema said:


> His wife claims he ordered the other chicken, not chicken Oscar.


I like your use of the word "claims" because I seriously wonder.  Why does the restaurant have triple back up verses just the woman's words?


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## miniman (Jul 10, 2008)

mozart said:


> "I am a lawyer and I think this is probably more complicated than this."
> 
> Yeah, it always is
> 
> ...


 
Is not the kitchen ticket & the computer order all based on the information on the order pad so these three points are all the same especially if the waitress misheard the order. But this should be picked up if she read it back.


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## GB (Jul 10, 2008)

Callisto in NC said:


> It's not like an ice cream shop serves crab ice cream


That is where you are potentially wrong though. How do you know that ice cream shops do not sell crab ice cream? Of course you can read the menu, but if you don't happen to read every entry then you could miss one.

Who would have thought that there would be someone who would make trout ice cream? What about tomato ice cream? Garlic? Squid? Avocado? Habanero peppers? Onion? Yet all of these things have been made into ice cream. Just because crab ice cream does not sound like something that would ever be made that does not mean that it does not happen. If a deadly crab allergy like this guy did and you made that assumption and went to a place that just happened to make something like that then there would be a cross contamination issue and you could die. Yes it is unlikely, but it most certainly is possible.


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## Maverick2272 (Jul 10, 2008)

miniman said:


> Is not the kitchen ticket & the computer order all based on the information on the order pad so these three points are all the same especially if the waitress misheard the order. But this should be picked up if she read it back.



That was my thought as well, everything else is based on what she wrote, so it is no surprise it all matches. If it didn't, then we would know where the mistake was made.
There are too many questions around this for anyone to have any answers right now. Did the waitress read the order back? Did he glance at the menu and read off the wrong dish by mistake? Was he committing suicide in such a way as to possibly provide money for his family?
Who knows... stay tuned to Court TV to find out, LOL.


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## Mama (Jul 10, 2008)

I was born and raised in Pennsylvania. I moved to Georgia when I was 20 years old so have been here about 30 years. When I first moved here, I noticed that some southerners had very thick accents. So thick in fact that sometimes I would have people repeat themselves a few times before I could understand what they were saying. There are still times when I can't understand people down here who have thick accents and then slur their words. So I can understand how the mix up could have happened. The restaurant in question is only about 20 miles from where I live. It was probably a misunderstanding on the part of the server but she should have repeated the order back. That should be a policy.


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## Callisto in NC (Jul 11, 2008)

GB said:


> That is where you are potentially wrong though. How do you know that ice cream shops do not sell crab ice cream? Of course you can read the menu, but if you don't happen to read every entry then you could miss one.


You're stretching things just to stretch.  Unless it's a specialty, make your own, not a chain, maybe, but no major chain ice cream shop has crab ice cream.  As to your list, please, those were Iron Chef creations, not on the normal menu and most were hated by the judges.


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## GB (Jul 11, 2008)

Callisto in NC said:


> You're stretching things just to stretch.  Unless it's a specialty, make your own, not a chain, maybe, but no major chain ice cream shop has crab ice cream.  As to your list, please, those were Iron Chef creations, not on the normal menu and most were hated by the judges.


I admit I used an absurd example to make a point. I never have seen crab ice cream. This has nothing to do with chains though. People with allergies do not only eat ice cream at Baskin Robbins. They do go to mom and pop shops. Absurd ice cream flavors DO exist. I have been in shops that have had them. As a matter of fact i was just watching a show (Modern Marvels) last night which happened to be on ice cream. They listed a number of flavors such as the ones I listed above and others as well including eel ice cream. Again, I am not talking about make your own. These flavors are served in shops open to the public. You may not have seen them, but that does not mean they do not exist.


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## David Cottrell (Jul 11, 2008)

I expect that the restaurant is in a weaked position here - the three statements they claim to back up the order are really one. The written ticket is the one, the other two are simply reproductions and not first hand verifications that the man actually did not order this. However, I believe the man is unfortunately not off the hook. 

Number one, he has a deadly shell fish allergy and he orders in a restaurant with plenty of seafood on the menu. Has there never ever been a case of cross contamination? If there has why in the world would one put their lives at risk by eating where such could occur. Nope, he was rather careless with his life unfortunately. 

Maybe a modest finding for his family but not much. A restaurant simply can not protect everyone who has deadly food allergies. These people have an obligation to protect themselves by avoiding potential deadly situations. My opinion and a rediculous amount of money will buy you a Starbucks.


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## mozart (Jul 11, 2008)

I think a lot of people are missing the point.  Callisto is not.

I read a first hand account by a witness who was one section over when this even occurred.  According to her, the man was panting and then he got up and asked if anyone there had any benadryl.  She said folks were going through there pockets and purses looking for it and some even went out to their cars.

The point is; he knew he had a life threatening allergy, he knew he was eating out where his allergen was served, he knew that medications existed that could help, and yet he failed to take the precautions that a normal person would take in his situation.

He should have carried and EpiPen, he should have told the waitress that he has a life threatening allergy so alert the cooks to be careful about cross-contamination, and he should have paid attention to what he was served.  Sliced tomatoes (according to the manager, this is how Chicken Fresco is served) don't look or taste anything like lump crab.

Where do you draw the line?  You don't need a line if you carry an EpiPen.  Since you need a prescription, the restaurant can't keep them on hand and probably would have liability issues if they could.

Someone with his history going out to eat without adrenalin on their person is unwittingly participating in a lottery.

IMHO


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## Wart (Jul 11, 2008)

GB said:


> The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.




Considering the consequences 'common sense' dictates that the allergy is brought to the forefront <b>each and every time</b> food is ordered. Your example of ordering ice cream illustrates this point extremely well.

Seems to me if eating the wrong thing can get me killed seems to me it would obnly be prudent to take every step to make sure I don't eat the wrong thing each and every time I order food <b>anywhere</b>


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## Wart (Jul 11, 2008)

mozart said:


> The point is; he knew he had a life threatening allergy, he knew he was eating out where his allergen was served, he knew that medications existed that could help, and yet he failed to take the precautions that a normal person would take in his situation.




I don't like blaming the victim but in this instance, no matter how the allergen got into the guys belly, going to an establishment that serves what could get him killed and not carrying the 'cure' shows a lack of self responsibility.


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## GB (Jul 11, 2008)

Wart said:


> Considering the consequences 'common sense' dictates that the allergy is brought to the forefront <b>each and every time</b> food is ordered. Your example of ordering ice cream illustrates this point extremely well.
> 
> Seems to me if eating the wrong thing can get me killed seems to me it would obnly be prudent to take every step to make sure I don't eat the wrong thing each and every time I order food <b>anywhere</b>


I do not disagree with any of this. I am only saying that people will be people. If you *have* to do something every day or risk something bad happen them most people will do their best to do it. Most people will also probably slip up from time to time and either take a chance or forget or whatever. It is just human nature, even with something as serious as this. That does not mean it is no longer that persons responsibility, but slip ups do and will happen.


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## Callisto in NC (Jul 11, 2008)

Am I the only one curious about these two dishes enough to actually want to go to Ruby Tuesday's sometime soon?


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## GB (Jul 11, 2008)

Callisto in NC said:


> Am I the only one curious about these two dishes enough to actually want to go to Ruby Tuesday's sometime soon?


I have been there and will not be back


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## ironchef (Jul 11, 2008)

For the record, here's what the two dishes look like. I think the first question that would've popped into my mind was: "Where's the tomatoes?!"

*Chicken Oscar*:





*Chicken Fresco:*


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## Callisto in NC (Jul 11, 2008)

GB said:


> I have been there and will not be back


I love Ruby Tuesdays.  I was excited when we finally got them in North Carolina.  I'd missed them since moving from California.  I usually just get a burger though.  Maybe we'll go there tonight.

And, IronChef, I agree.  It's hard to believe he couldn't see the difference.


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## Bigjim68 (Jul 11, 2008)

Just how much protection does society, collectively or individually owe to individuals?  These pictures, and the menu descriptions are pretty clear.  A person knowing he deathly allergic to something, who does not carry the antidote with him, does not look to see if the dish has crab and asparagus, or tomatoes on it, and now, presumably a suit and settlement will ensue, which we all will pay for.  Accidents will happen.  Everything has someone allergic to it.  If we remove all allergy potential, we will all die of starvation.  Personal responsibility must come into play at some point.


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## B'sgirl (Jul 11, 2008)

GB said:


> I have been there and will not be back



I've been there and I didn't like it either. It wasn't bad, but it wasn't that great either. We did have a terrible waitress (I ordered a very spicy dish and she never ONCE came back to refill my drink!) but I can't blame that one the chain. They sure are getting a bad wrap lately though, because they recently had some publicity for kicking a woman out of their restaurant who was nursing her baby. 



> A Florida woman is suing the franchise Ruby Tuesdays because they apparently asked her to breast feed her baby in the restroom or outside their restaurant. According to Florida law, mothers are permitted unconditionally to breastfeed anywhere, public or private, covered or uncovered.



Unfortunately I couldn't find a link to the story so I don't know the whole story. It was just a post on the Babytalker's forum awhile back. I wish she would have linked the story.


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## mozart (Jul 11, 2008)

B'sgirl said:


> I've been there and I didn't like it either. It wasn't bad, but it wasn't that great either. We did have a terrible waitress (I ordered a very spicy dish and she never ONCE came back to refill my drink!) but I can't blame that one the chain. They sure are getting a bad wrap lately though, because they recently had some publicity for kicking a woman out of their restaurant who was nursing her baby.
> 
> 
> 
> Unfortunately I couldn't find a link to the story so I don't know the whole story. It was just a post on the Babytalker's forum awhile back. I wish she would have linked the story.


 
Mother alleges discrimination while breastfeeding at a Ruby Tuesday : St. Lucie County : TCPalm

Here ya go!


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## B'sgirl (Jul 12, 2008)

Thanks!


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## Callisto in NC (Jul 13, 2008)

B'sgirl said:


> They sure are getting a bad wrap lately though, because they recently had some publicity for kicking a woman out of their restaurant who was nursing her baby.


I would say bad press on that one depends strickly on what side of the coin your opinion of public breast feeding is on.  But that's a discussion for a different thread.  

I stopped after work at Chili's on Friday and my server had just graduated nursing school and a friend of his stopped by to talk to him about the state test he was going to be taking and one of the things on the test is food and medicine reactions.  I asked him what he thought about the Ruby Tuesday thing and he believes the person didn't inform the restaurant.  He said he gets a handful of people a week that say "I'm allergic to X" and he's very careful.  His opinion is the norm is people with severe allergies generally tell their servers.  He also agreed with the majority, CARRY AN EPIPEN!!  If you have allergies, you don't run around a restaurant asking for a benadryl if you have an epipen.


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## CharlieD (Jul 15, 2008)

Not at all the same situation, but it shows the fact that restaurant workers care about the clientele. If he (the man) had mentioned to the waiter that he has allergy they (the restaurant workers) could have been much more careful. I was looking for a recipe once, of a particular dish in a restaurant, of course, nobody would give it away. So next time I was there I told the waiter that I had number of allergies and needed to know exactly the ingredients in the dish. He ran back to the kitchen and came back with a list of everything that was included in the dish and in the sauce. 
What I’m trying to say is that the man really should have mentioned the fact that he has allergies to the waiter. It was His responsibility. The waiter could have made a mistake, happens a lot of times, especially in the busy hour, I have been brought a wrong dish number of times. Once I remember it looked much better than what I ordered, so I told I’ll just eat that dish, the other time it looked so bad that I said take it away. Things happen and in my opinion it is responsibility of the person to let everyone know about such an important thing like the allergies, unless one is playing Russian rulet.


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## jennyema (Jul 15, 2008)

ironchef said:


> For the record, here's what the two dishes look like. I think the first question that would've popped into my mind was: "Where's the tomatoes?!"
> 
> *Chicken Oscar*:
> 
> ...


 

The first question that would have popped up in my mind is why are there peking ravioli on my chicken?


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## Wart (Jul 15, 2008)

CharlieD said:


> Things happen and in my opinion it is responsibility of the person to let everyone know about such an important thing like the allergies, unless one is playing Russian rulet.




Russian Roulette is exactly what I thought of when first reading this thread.




Bigjim68 said:


> Just how much protection does society, collectively or individually owe to individuals?



Pragmatically society can't protect anyone from anything.

Especially from themselves.


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## CharlieD (Jul 15, 2008)

Wart said:


> Russian Roulette is exactly what I thought ...


 

Exactly, that is what I meant, thank you, no wonder spell check could not find that word. One of these days I will learn how to spell properly.


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## Wart (Jul 16, 2008)

Google is my friend.


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