Food allergies: a risk poorly grasped in restaurants
August 5, 2016 8:48 AM   Subscribe

 
Ignoring allergies as a food professional is absolutely negligence. That deserves consequences, though I'll grant prison is only one potential (and questionably effective) consequence. What would you have the reaction be?
posted by R a c h e l at 8:59 AM on August 5, 2016 [3 favorites]


Maaaaybe if eating salmon and seafood can kill you, you check carefully check every meal when dining out, have your partner take a first bite and you should double check to make sure you brought you Epy pen inside with you.
posted by Brandon Blatcher at 9:00 AM on August 5, 2016 [34 favorites]


You can do all those things and also expect that the restaraunt you informed of your life threatening allergy to respect your request regarding that they not serve you food that can kill you.

These are not exclusive.
posted by Karaage at 9:03 AM on August 5, 2016 [118 favorites]


While I agree there is a standard of care that one should take when one is vulnerable and hindsight is 20/20, I'm not comfortable putting all the responsibility for this on the victim. He did, after all, tell his server!
posted by Fraxas at 9:03 AM on August 5, 2016 [18 favorites]


Claude Gauthier, president of Quebec's restaurant association, said at least one employee in every restaurant kitchen needs to have taken a course offered by the province on hygiene and food safety.

The course includes a section on food allergies. Gauthier said servers would also benefit from such training.


I honestly don't understand why every person who interacts with the food isn't be required to take that. I know in Washington State, every food handler needs to pass a basic food safety exam and one person on duty needs a higher level as well - that seems perfectly reasonable to me.
posted by R a c h e l at 9:03 AM on August 5, 2016 [14 favorites]


Interesting as I had a friend who over a decade ago - also in Montreal I believe - was fed a dish with peanut oil, went into anaphylactic shock, was improperly intubated in the hospital and suffered brain damage resulting in brain damage and losing his ability to walk. I think there was a civil suit (I'm not really sure) but it's the kind of thing that had he been, say, beat up, would have resulted in pretty serious criminal charges. He too disclosed his allergy before the meal.
posted by GuyZero at 9:04 AM on August 5, 2016 [7 favorites]


As the OP, I'd like to add I lived in Sherbrooke, QC for a number of years. I know that restaurant; it's mostly tapas (hence the weird name) and it is very dim lighting inside. The waiter really should have been more attentive and written it down for himself and the kitchen so as not to endanger the diner.
posted by Kitteh at 9:04 AM on August 5, 2016 [2 favorites]


I'm pretty curious to know what happened. Did the waiter put in the wrong order and the kitchen deliver what the waiter actually ordered? Did the kitchen deliver the wrong dish, and the waiter just not notice that he was serving salmon tartar vs. steak tartar? Did the waiter pick up the wrong plate from the pass?

They all have significantly different implications re: mens rea for a criminal negligence charge.
posted by jacquilynne at 9:05 AM on August 5, 2016 [11 favorites]




Clearly, as serving staff are required to make life/death decisions on a daily basis, they should all be required to go through four years of technical training, be licensed by the state, and purchase malpractice insurance. You, too, can have the joy of eating out for the low price of $2,000 per meal.
posted by tempestuoso at 9:07 AM on August 5, 2016 [61 favorites]


Maaaaybe if eating salmon and seafood can kill you, you check carefully check every meal when dining out, have your partner take a first bite and you should double check to make sure you brought you Epy pen inside with you.

After warning the waiter of your allergies and ordering something made wholly of beef that should be a perfectly fine thing for you to eat? Is that a reasonable additional set of three precautions that someone should take when, say, ordering at Starbucks (they have tuna on the menu there too)?

The legal test here is what's a "reasonable" level of precaution. If having a food taster accompany you all the time reasonable? (How does that work at, say, a drive through?) Are there even professional food tasters who can with 100% accuracy tell the permissible food from the haram at first bite?
posted by bonehead at 9:12 AM on August 5, 2016 [28 favorites]


Canuel alleged the waiter didn't inform the cooks of the allergy and instead was chatting, laughing and drinking alcohol with other guests.

If the waiter didn't even bother to tell the cook, yeah, he's fucking negligent to say the least.

But handling allergies is tricky business. Sometimes even the tiniest amounts of residual ingredients can cause severe allergic reactions.
posted by Foci for Analysis at 9:13 AM on August 5, 2016


There's a site (https://notalwaysworking.com/) full of stories of people doing some form of customer service and doing it utterly wrong and brain dead. The amount of food related stories in there is, well, crazy.
posted by DreamerFi at 9:15 AM on August 5, 2016 [1 favorite]




My best guess is the waiter didn't write it down, got back to the kitchen, remembered hearing salmon, and ordered salmon.
posted by BentFranklin at 9:17 AM on August 5, 2016 [8 favorites]


I really do not see this an either/or: It seems to me the customer had a duty to inform the waiter that he had a potentially life threatening allergy, not a food intolerance, and certainly should have had an epi pen. And the waiter should have double checked the order and the service. it is not a perfect world. We know what the customer alleges the waiter was doing but we do not know what the customer was doing.
posted by rmhsinc at 9:18 AM on August 5, 2016 [1 favorite]


[Couple comments removed. If you're confused or curious about why something you posted was deleted, the proper thing to do is to write to the contact form and talk about it there. Making a followup comment to complain about the deletion and double-down on the original content isn't gonna work.]
posted by cortex (staff) at 9:20 AM on August 5, 2016 [2 favorites]


The legal test here is what's a "reasonable" level of precaution. If having a food taster accompany you all the time reasonable?

He had a dinner companion. Getting food wrong is pretty common in restaurants, I can't fathom someone risking death based on getting the order right and not even bothering to check.

A fine sounds right for this, because there was clear negligence on both their parts.
posted by Brandon Blatcher at 9:20 AM on August 5, 2016 [7 favorites]


was fed a dish with peanut oil, went into anaphylactic shock

Assigning blame in this case would actually be somewhat difficult because refined peanut oil is not an allergen, but cold-pressed/virgin is. Given that refined peanut oil is far more common, this may have been improperly processed refined oil, or a supplier or purchaser may have provided the kitchen with the wrong ingredient.
posted by [expletive deleted] at 9:21 AM on August 5, 2016 [5 favorites]


The weird thing is steak tartare contains Worceshire sauce, which is made of anchovies. Why is that fish okay?

Plus if had remembered his pen, none of this would have happened.
posted by Keith Talent at 9:24 AM on August 5, 2016 [6 favorites]


If the waiter didn't even bother to tell the cook, yeah, he's fucking negligent to say the least.

Like jacquilynne, I'm a little confused about the sequence of events. The diner ordered beef tartare. If the waiter delivered that order to the kitchen, it wouldn't occur to me that he was negligent if he didn't say, "He ordered beef, and he's allergic to salmon."

However, maybe I should shift my standards. If the diner thought it was necessary to mention that he was allergic to seafood when ordering beef from the waiter, perhaps it's necessary for the waiter to mention the allergy when he's ordering beef from the chef.

Still, if the waiter properly relayed the order, I would say the person guilty of negligence is the kitchen worker who provided fish when the waiter asked for meat. Obviously, if the waiter conveyed the order incorrectly, the situation is completely different.
posted by layceepee at 9:28 AM on August 5, 2016 [1 favorite]


I'm really weirded out by the victim blaming here. He was literally served the thing he was allergic to - he could tell it wasn't steak tartar before the symptoms kicked in. That's a whole other level of neglect, serving someone allergic to salmon a salmon dish.
posted by Deoridhe at 9:29 AM on August 5, 2016 [58 favorites]


Plus if had rememebered his pen, none of this would have happened.

How would having a pen stop the waiter from bringing him the wrong dish that he specifically asked him not to bring because of his allergies?
posted by cjelli at 9:29 AM on August 5, 2016 [41 favorites]


Charging this guy with a crime seems like bullshit in a world where we don't jail doctors and nurses who make life threatening mistakes.

Sue the restaurant into the ground, sure. But I can't see a case for criminal negligence on the part of the waiter here.

This isn't a case of lying about the chicken stock in the minestrone, or assuming that "gluten free" is just a fad and you can use as much soy sauce as you want.

The customer ordered beef tartar. Why would the waiter bother to tell the cooks about a salmon allergy for a beef dish? Yeah, the waiter fucked up by picking up the wrong plate, and yeah, it was dark, but salmon and beef don't even smell the same, and it's definitely more appropriate for the customer to have his nose within smelling distance than the waiter.
posted by sparklemotion at 9:30 AM on August 5, 2016 [24 favorites]


I honestly don't understand why every person who interacts with the food isn't be required to take that.

Money, probably. A lot of restaurant employees get minimum wage or lower. Which tells me that a lot of restaurant owners aren't really interested in paying for training.
posted by Hoopo at 9:30 AM on August 5, 2016 [4 favorites]


Plus if had rememebered his pen, none of this would have happened.

This is a commonly held misconception. EpiPens are not magic rewind buttons for allergen exposure. That's why the packaging on EpiPens clearly states that you still need to seek professional medical assistance after using it. To say that he would have suffered no ill effects if only he had used his EpiPen immediately is absolutely untrue and perpetuates a pretty dangerous myth.
posted by telegraph at 9:31 AM on August 5, 2016 [123 favorites]


Epipens give the paramedics around an extra fifteen minutes to get there so they can administer their own adrenaline. It doesn't stop the process, it just increases the chance that the victim might not die for a short window.
posted by bonehead at 9:34 AM on August 5, 2016 [78 favorites]


On one hand, I agree that you should be able to expect a restaurant to accommodate most allergy requests to the best of their ability.

On the other hand, restaurants are not cleanroom facilities and the employees have neither the training nor the equipment to totally prevent all contamination, nor is it reasonable to expect them to have those things because it would result in extreme expense, probably entirely ruining their business model. Until you've worked in a lab, you have no idea how much it takes to totally stop one thing from contaminating another thing.

So, as much as it sucks, if you have a potentially fatal food allergy you should probably stay out of restaurants. Nobody there is treating what they do as something that could potentially kill someone if they make a tiny error. And they don't have the equipment or the training to be that careful even if they wanted to.
posted by Mitrovarr at 9:35 AM on August 5, 2016 [41 favorites]


To say that he would have suffered no ill effects if only he had used his EpiPen immediately is absolutely untrue and perpetuates a pretty dangerous myth.

The ill effect might have been lessened though, and if Quebec's civil system has some kind of analogy to comparative/contributory negligence I would hope that the court would take that into account when deciding damages in a private action against the waiter and/or the restaurant.

It doesn't change the fact that this shouldn't be a treated like a crime.
posted by sparklemotion at 9:35 AM on August 5, 2016 [1 favorite]


Yeah, if he had remembered his EpiPen, most of that would have happened. An EpiPen will not jump out of your bag and chase down a waiter who doesn't get your order right or make them give a fuck about your allergies.

At the current prices, they ought to, but they don't.
posted by Lyn Never at 9:36 AM on August 5, 2016 [36 favorites]


To those who say he should have noticed it: how the heck was he supposed to recognize he was eating salmon? He's allergic to it. He's had it maybe once or twice before, or maybe even zero times if his allergy was discovered by a test, and may have no idea what it smells or tastes like. All he knew was "huh, this beef tastes a little odd". Followed by "um, actually, I think this may not even be beef."

I don't think you have to run your restaurant like a cleanroom to not serve people dishes that are things they didn't order and that you have been informed they are allergic to. Not every allergy is triggered by trace amounts; I don't think it's on allergic people to avoid dining out entirely.
posted by town of cats at 9:39 AM on August 5, 2016 [48 favorites]


My mother in law (technically my future MIL) is super allergic to salmon. It won't kill her but it can put her in the hospital. When we go out with her she asks the kitchen to use a separate pan to cook her meal if salmon appears anywhere on the menu (sometimes things are cooked on the same grill or griddle and oils can stay behind). She carries an epipen with her at all times and makes sure everyone knows how to use it.

It's not unreasonable to expect that the restaurant will be able to prepare your food in a way that won't kill you. Those of us without food allergies make that assumption all the time - that the restaurant isn't using spoiled meat or putting cooked food in with raw, or storing it improperly, or handling it with dirty hands. And people get food poisoning all the time because of negligence, but no one seems to place the blame for that on the victims.

I have been out with my MIL and she's gotten sick. She has to trust that the wait staff are relaying her message about cooking the food in a separate pan because of a dangerous allergy. Restaurants should be able to accommodate that kind of an allergy, and if they mess up it's not my MIL's fault. I don't know why people feel this reflexive need to point out that the victim here should have known better. It's either trust that the restaurant will comply with your allergy related needs, or never go out.
posted by teponaztli at 9:39 AM on August 5, 2016 [48 favorites]


Should restaurants be required to have an epipen on hand, if they serve ingredients that can cause allergic shock in some people? They don't have to serve fish, after all.

Perhaps that's not entirely a serious proposal, but it's about as nonsensical to me as requiring everyone with a food allergy to have a taster or bring a fish protein test kit with him.

Informing the waiter and ordering appropriately should be reasonable enough.
posted by bonehead at 9:40 AM on August 5, 2016 [17 favorites]


Oh, I see that someone has literally said you should never go out if you have an allergy.
posted by teponaztli at 9:41 AM on August 5, 2016 [20 favorites]


town of cats: I don't think you have to run your restaurant like a cleanroom to not serve people dishes that are things they didn't order and that you have been informed they are allergic to.

You still need a workflow pattern slow and cautious enough to absolutely guarantee the absence of mistakes, and heavily trained and certified professionals. Working with things that are potentially lethal (beyond simple cooking rules) is simply outside the pay grade of anyone in a restaurant.
posted by Mitrovarr at 9:44 AM on August 5, 2016 [10 favorites]


An EpiPen will not jump out of your bag and chase down a waiter who doesn't get your order right or make them give a fuck about your allergies.

What does "giv[ing] a fuck about your allergies" look like?

those of us without food allergies make that assumption all the time - that the restaurant isn't using spoiled meat or putting cooked food in with raw, or storing it improperly, or handling it with dirty hands. And people get food poisoning all the time because of negligence, but no one seems to place the blame for that on the victims.

Western societies tend to have an extensive series of laws and regulations and inspectors to make sure that they are followed in order to make sure that restaurants don't do the things listed above. People don't blame the victims there because a.) there's know way to know if those kinds of secret violations happen, and b.) if the restaurant fucks up in that way, they are breaking the law.

In what way should the laws change to ensure the safety of those of us with food allergies? I'd seriously be in favor of something but I can't think of anything that would really provide the kind of assurances that you need in life-or-death situations.
posted by sparklemotion at 9:44 AM on August 5, 2016 [2 favorites]


>The legal test here is what's a "reasonable" level of precaution. If having a food taster accompany you all the time reasonable?

He had a dinner companion. Getting food wrong is pretty common in restaurants.


This time. Should he have to have someone not only eat with him but also sample his food and drink every time he eats outside the house? Because if we're saying that not eating with a friend makes him liable in general, then we're effectively saying he can never eat alone -- not at a restaurant, not at a cafe, not anywhere. That strikes me as an unreasonable level of caution to demand of anyone, even if it might be a reasonable precaution to take when possible.

It doesn't seem unreasonable to expect a restaurant to bring the food you actually order. 'It happens a lot' can also be a signal that maybe something should change -- why does it happen a lot? Is that easily preventable?

I'm not sure that holding the waiter personally liable, rather than the restaurant, is necessarily the best remedy, but the victim-blaming here is gross.
posted by cjelli at 9:44 AM on August 5, 2016 [16 favorites]


This is why people who say "I'm allergic to onions" when they only dislike onions really piss me off. Some onion bits end up in that person's food, they eat it just fine, and then the staff figure that every customer is lying about their allergies.

That being said, I've got a couple of trusted restaurants for my kid's anaphylactic peanut/nut allergy. For example, at the Cactus Club, when you tell them there's a severe food allergy, the manager or assistant manager will walk the entire meal through the kitchen to make sure it's safe. We tip well there.
posted by wenat at 9:45 AM on August 5, 2016 [68 favorites]


So, as much as it sucks, if you have a potentially fatal food allergy you should probably stay out of restaurants. Nobody there is treating what they do as something that could potentially kill someone if they make a tiny error. And they don't have the equipment or the training to be that careful even if they wanted to.

Or, maybe after this lawsuit other restaurants will start treating what they do as something that could potentially kill someone if they make a tiny error, and so people with food allergies will not have to become social pariahs just because you've accepted that restaurants are free to slack off.
posted by EmpressCallipygos at 9:46 AM on August 5, 2016 [20 favorites]


I'm sad both that the diner got hurt AND this person is going to jail for an innocent mistake. Writing fanfic about how this terrible thing might not have happened doesn't really help anyone.
posted by bleep at 9:47 AM on August 5, 2016 [19 favorites]


This guy was not dosed with an aerosol spray of several molecules of salmon essence. He was served a plate of salmon that looked like the beef he ordered in the dark restaurant, and as town of cats pointed out, he probably has no idea what salmon tastes like anyway.

I find that MeFi often jumps to "well maybe [victim] should never do [action] because of [potential harm]" and more often than not it's an attitude that consigns wide swaths of people to lives that are unnecessarily limited because of a lack of compassion and understanding. I completely respect the conflict we're having here about the legal issues and how they affect the industry and the people who work in it, but I wish we could at least start from a common agreement that this happened to a real person with feelings and dignity.
posted by telegraph at 9:48 AM on August 5, 2016 [50 favorites]


Or, to put it another way - in a world in which pharmacists routinely screw up and kill people, how the hell are you expecting restaurant staff, with their lack of specialised education, generally minimal training, and extreme overwork, to never make mistakes?
posted by Mitrovarr at 9:53 AM on August 5, 2016 [31 favorites]


Or, maybe after this lawsuit other restaurants will start treating what they do as something that could potentially kill someone if they make a tiny error, and so people with food allergies will not have to become social pariahs just because restaurants are free to slack off.

The tort based solution to this leads to restaurants buying the equivalent of malpractice insurance, and the insurance companies imposing whatever they need from the restaurant which will probably just end up making everything more expensive for everyone (because from the restaurant's perspective, even insane insurance costs are probably cheaper than actually rejiggering everything).

I'd rather see something more like an ADA-style solution, where restaurants are still forced to make reasonable accomodations, but sometimes those accomodations are things like "you need to order off of this particular menu", or "to ensure a lack of cross contamination, please sit in a different area that can be served by a special kitchen," or posting a sign a la theatrical performances that use strobe lights "Please be informed that this restaurant cannot prepare isolated dishes"
posted by sparklemotion at 9:53 AM on August 5, 2016 [14 favorites]


What does "giv[ing] a fuck about your allergies" look like?

Pretty much the same thing as giving a fuck about your order, but with the added knowledge that if you fuck up the order, instead of giving the person a free drink, you might kill them.

Part of the problem, as we have repeatedly seen in threads like this, is that a lot of servers actually don't think food allergies exist and refuse to cater to them, because somebody who actually wasn't allergic to gluten once ordered the salad and ate one of the crutons and did not die on the spot, or something.
posted by maxsparber at 9:54 AM on August 5, 2016 [21 favorites]


Getting food wrong is pretty common in restaurants, I can't fathom someone risking death based on getting the order right and not even bothering to check.

Is it? I mean, I'm trying to think back over the last three years, and I cannot think of an instance where the order was wrong, and I go out quite frequently.
posted by qcubed at 9:56 AM on August 5, 2016 [7 favorites]


Regarding the salmon-protein-test-kit --- do such things exist? In a portable, cheap, useable-by-patron way? I think it'd be pretty cool if you could check your food personally to make sure it's not going to kill you (particularly if you don't have a language in common with the waitstaff, e.g. if you're travelling).

If they don't exist, why not? It seems there'd be a market for it... especially given how stupid expensive epipens have gotten. And how many waitstaff go with the "I'll just scrape the peanuts off, then you can eat it right?" approach.. I assume due to not knowing what can happen that way.
posted by nat at 9:56 AM on August 5, 2016


Working with things that are potentially lethal (beyond simple cooking rules) is simply outside the pay grade of anyone in a restaurant.

Raw or undercooked chicken is potentially lethal. Salmonella kills people every year. Restaurants manage to handle that pretty well because of strict food safety regulations, which were the direct result of lawsuits after people were harmed by negligent behavior. I would like to see this situation be treated as something that can inform future practices in the restaurant industry, just as with raw chicken in the past. Yeah, it's a hurdle that will make prep more difficult, and yeah people can abuse it, but I'm not so keen on just saying it's a non issue because we've tried nothing and we're all out of ideas.

I mean, look, yeah accidents happen, but if someone accidentally messes up in the car and hits someone, we don't all go "we can't expect things to be perfect! You should stay at home."
posted by teponaztli at 9:58 AM on August 5, 2016 [25 favorites]


this person is going to jail for an innocent mistake

Let's stay in reality here. Charges have been laid, no conviction has been had. Sentencing, if it happens has many other options than jail for this offense.

And it can't be an "innocent mistake". Gross negligence requires a much higher bar than a simple mistake, but a wilful disregard for consequence as well.

So far, this isn't that far in the future, and we're not even sure if this isn't that at all.
posted by bonehead at 10:00 AM on August 5, 2016 [5 favorites]


Nat: Regarding the salmon-protein-test-kit --- do such things exist? In a portable, cheap, useable-by-patron way?

Probably, and if they don't you could almost certainly make one. However, you are looking at several dollars a test, particularly if liability is an issue, and nobody is going to keep doing that after the three hundredth $5 negative.
posted by Mitrovarr at 10:00 AM on August 5, 2016


This level of irresponsibility is infuriating,and not on the waiter's part! And no, it's not victim blaming either.


I don't understand that laissaiz faire approach that some people with life threatening food allergies have to eating out. Why would you place that responsibility on the hands of a 22 year old who gets paid below minimum wage?! How invested do you think he is in carrying out his miserable, underpaying job?


Confusion and swaps happen all the time in restaurants, especially during busy times. Yes, you should expect a reasonable level of care when it comes to allergies, but even then, how TF do you trust that a small mistake that can kill you won't happen?


People pretend all the time to have allergies they don't have, just to avoid eating gluten or whatever TF is cool at the time, which should be an offense in itself, because they trivialize the concept.


As a first step, if you have a deadly allergy to a food item, it should be required by law to present a medical document or card to prove it when you order food, otherwise the restaurant should not be held responsible in case smth like this happens.


Eating out is not a human right, it's a privilege that relies on unspeakable exploitation and worker abuse in order to be affordable enough. People who whine because they can't be careless with a deadly food allergy in restaurants are insufferable, ugh!
posted by ariadne_88 at 10:02 AM on August 5, 2016 [18 favorites]


I'd rather see something more like an ADA-style solution, where restaurants are still forced to make reasonable accomodations, but sometimes those accomodations are things like "you need to order off of this particular menu", or "to ensure a lack of cross contamination, please sit in a different area that can be served by a special kitchen," or posting a sign a la theatrical performances that use strobe lights "Please be informed that this restaurant cannot prepare isolated dishes"

I've actually seen notes on menus about the risk of food borne illness from eating raw or undercooked shellfish and so on. Even just having a note that says "this restaurant cannot prepare isolated dishes" would save a lot of trouble. The risk is that every place will do this and never serve people with allergies, but I guess it's better to know and have the restaurant acknowledge liability than to have to be on edge about whether or not they're going to take your allergy seriously enough.
posted by teponaztli at 10:03 AM on August 5, 2016 [9 favorites]


Restaurants manage to handle that pretty well because of strict food safety regulations, which were the direct result of lawsuits after people were harmed by negligent behavior.

Can you provide some kind of citation for the claim that lawsuits led to regulations? Because that sounds ass-backwards to me (though, give your personal history with food safety issues, I would assume that you would be more familiar with the literature than I).
posted by sparklemotion at 10:03 AM on August 5, 2016


This time. Should he have to have someone not only eat with him but also sample his food and drink every time he eats outside the house?

Quite possibly, if he wants to ensure the chances of, you know, not dying.

Because if we're saying that not eating with a friend makes him liable in general, then we're effectively saying he can never eat alone -- not at a restaurant, not at a cafe, not anywhere. That strikes me as an unreasonable level of caution to demand of anyone, even if it might be a reasonable precaution to take when possible.

If he wants to roll the dice and then get someone potentially jailed when he hasn't taken a single precaution, I'd suggest that he never eat alone then.

If he wants to go after the restaurant with fine and that forces some mandatory training locally or nationally or even internationally, that's great, all for it. But getting someone else arrested for your own slack ways personally strikes me as the height of arrogance.
posted by Brandon Blatcher at 10:05 AM on August 5, 2016 [2 favorites]


Regarding the salmon-protein-test-kit --- do such things exist? In a portable, cheap, useable-by-patron way?

Sort of and no, at least for IDing fish right now, as far as I'm aware.

Sort of: A couple of labs have rapid analysis techniques used for ID'ing salmonid species to prevent food fraud. Here's one example.

No: the test requires trained analysts and takes at least two hours.
posted by bonehead at 10:06 AM on August 5, 2016 [5 favorites]


they should all be required to go through four years of technical training, be licensed by the state, and purchase malpractice insurance.

This is a joke, but I do think it raises an important point: We're talking about people who are not paid or trained for this level of responsibility.

I used to work in food service. It was in a coffeeshop, not a restaurant, but we did have products that people are commonly allergic to. We were paid minimum wage. We had very little on-the-job training. There were no procedures in place for handling food allergies.

Mistakes will happen because people are human. Food service workers will mix up orders; they'll miscommunicate or forget things; they'll be unaware of the ingredients in some of the food. Some will be ignorant.

I know I served people the wrong latte more than once. Telling me that I should just care more isn't a solution; it's misplaced blame. And it's disconcerting that it's being focused on people lowest on the totem pole, again.

Industries like aviation and medicine, where we have very high standards for safety, take systematic approaches to reducing error. There is a huge safety apparatus. You can still be criminally negligent in these industries, but where honest mistakes are likely to happen and cause problems, there are training and procedures in place to help you be safe. Food service workers for the most part don't have that.

Expectations of food safety regarding allergies have outstripped what food service workers are equipped to provide. People with severe allergies should be able to go out and have a nice meal, but criminalizing low-paid and under-trained workers for making human mistakes is not the way to do it. You have to change the industry. This should be seen as a systemic failure and treated as such.
posted by Kutsuwamushi at 10:08 AM on August 5, 2016 [145 favorites]


Yes, you should expect a reasonable level of care when it comes to allergies, but even then, how TF do you trust that a small mistake that can kill you won't happen?

He told the server that he had an allergy, and the server brought him the thing he was allergic to. This wasn't someone suffering a reaction because a cook didn't use the high-grade soap after holding a knife that someone else had grabbed after touching salmon.
posted by Etrigan at 10:11 AM on August 5, 2016 [26 favorites]


I mean, this sounds like a serious training issue, mostly.

I have a friend who has significant dairy and nut allergies that can send her to the hospital. I've eaten at a number of restaurants with her and while one of her strategies is to order things that are less likely to be cross-contaminated, we've never had problems with telling people of her allergies and having that be respected. It is perfectly possible for restaurants to manage this effectively most of the time. I mean, it might not be good practice for my friend to eat dinner at Walnuts-R-Us and expect them to keep from cross-contaminating everything but in average, wide-selection restaurants it seems to be perfectly manageable.

I do feel sorry for the waiter too (at least assuming that he is properly horrified and scared-into-being-careful) just because if he's seen people make up allergies a lot and hasn't been trained well, he simply might not have realized that things could be that serious.
posted by Frowner at 10:11 AM on August 5, 2016 [3 favorites]


Even just having a note that says "this restaurant cannot prepare isolated dishes" would save a lot of trouble.

I don't want to be victim blamey. And I also don't want to pretend that a world where people with food allergies can never eat out is an ideal solution.

But, part of me wonders why people with life-threatening food allergies don't just take "this restaurant cannot prepare isolated dishes" as a given, for any restaurant that doesn't advertise that they can/do do this?

It seems like everyone wants to have their cake and eat it too. Everyone wants to pay $X for their meals, restaurants want to make $Y in profit. Restaurants don't have the incentive to put real allergy safety controls in place because that would eat into $Y, and customers with allergies don't think it would be fair to have to pay more than $X to cover the cost. Customers and service staff both don't want to be inconvenienced, so customers insist that staying home isn't reasonable, and service staff (often) won't go above and beyond the bare minimum to ensure that the customer gets what they ordered. Since most of the time, the bare minimum is plenty, everyone is happy.

But when situations like this show up, everyone starts pointing the blame at everyone else.
posted by sparklemotion at 10:12 AM on August 5, 2016 [5 favorites]


If you want waitstaff to never mess up an order, ever, how would you accomplish that?

Charging waiters with criminal negligence is not going to fix anything. The waiter didn't maliciously serve this guy the wrong thing. He already doesn't want to bring people the wrong dish. You can't produce a 0% error rate without a feedback loop in a system that requires a human to correctly do the right thing in 5 distinct steps, any of which could be easily messed up (diner => waiter, waiter => kitchen, kitchen prep, kitchen => waiter, waiter => diner).

The correct fix is a regulatory one. When a customer cites a dangerous allergen, there should be procedures in place. This doesn't have to be cumbersome! The kitchen can do something as simple as putting a labelled binder clip on the side of the plate that says "No allergen: Seafood". The diner verifies the clip is there.

This is good because it's repeatable and verifiable. You can verify at each step of the process that the correct thing is happening. State inspectors can visit a kitchen and observe that allergen labels are being placed in accordance to proper procedure. You see a cook put a "No seafood" label on a dish and then squirt fish sauce on it, you cite the restaurant, same as you would if they had cross-contamination of cutting boards.
posted by 0xFCAF at 10:14 AM on August 5, 2016 [44 favorites]


Why would you place that responsibility on the hands of a 22 year old who gets paid below minimum wage?!

I mean, yes, I think waiters could get paid more, but literally the very least you should be able to expect from a waiter is that they get your order right, especially if you have identified an issue.
posted by maxsparber at 10:14 AM on August 5, 2016 [8 favorites]


The waiter didn't maliciously serve this guy the wrong thing.

No, he negligently served him the wrong thing. He did not write down the order and it did not take a life-threatening allergy seriously enough to alert the back of the house staff. This isn't somebody serving me olives when I asked that they be removed. This is someone getting the order exactly wrong because they did not care enough to get it right.
posted by maxsparber at 10:16 AM on August 5, 2016 [24 favorites]


Raw or undercooked chicken is potentially lethal. Salmonella kills people every year. Restaurants manage to handle that pretty well because of strict food safety regulations,

Well, if salmonella kills people every year, then restaurants haven't figured it out too well. But that's a completely different case. When it comes to poultry you can just cook the chicken to oblivion, and be careful with cross contamination. Regulations for food safety are the sine qua non of restaurants, or they'd all be a public hazard.

Food allergies affect individuals in a different way, and dealing with them is a lot more complicated since you can't just cook something until it's no longer an allergen. A minor cross contamination when it comes to chicken might not kill you, or even make you sick, but an allergen will.
posted by ariadne_88 at 10:17 AM on August 5, 2016 [1 favorite]


I do feel like the environment in your average restaraunt is probably so chaotic, and the amount of contaminant necessary to cause a fatal reaction so small and easily overlooked, that it would be impossible to absolutely guarantee the absence of a particular allergen without a major overhaul of how the restaraunt industry operates. To some extent, if you have a potentially-lethal food allergy, you are rolling the dice every time you go out.

That said, we do need to do a better job of raising the bar for what constitutes due diligence on the part of the restaraunt. I don't think it would be at all unreasonable to require a basic level of training in allergens for all food service personnel, with additional training for management and possibly a special certification that authorizes someone there to use or at least assist with the use of an onsite epi-pen in the event of an anaphylactic reaction where the patron hadn't brought their own. I do think there need to be regulations mandating specific procedures to be followed in the event that a patron discloses a food allergy, involving increased verification of the order chain, the use of separate cookware, and consultation of a reference that allows the cooks to know which of their ingredients might contain a given allergen.

That's what I think this should be about. It's unrealistic to expect perfection, but there could easily be strong regulations in place mandating that the bar for due diligence be raised. Liability should fall to the restaurant itself, and possibly also on the staff if it could be shown that there were specific ways in which they deviated from the approved protocols. I could see it being criminal liability under those circumstances, if the staff member was criminally negligent.
posted by Anticipation Of A New Lover's Arrival, The at 10:20 AM on August 5, 2016 [5 favorites]


I do feel like the environment in your average restaraunt is probably so chaotic, and the amount of contaminant necessary to cause a fatal reaction so small and easily overlooked, that it would be impossible to absolutely guarantee the absence of a particular allergen without a major overhaul of how the restaraunt industry operates.

This may be true. On the other hand, here we are dealing with a case where the person wasn't served a tiny amount and reacted to minuscule contamination, but instead was literally given an entire plate of exactly the thing he said he was allergic to.
posted by maxsparber at 10:22 AM on August 5, 2016 [22 favorites]


Food can kill people. Not even just with allergies. But I don't see how this means that it's "outside their pay grade" to be careful enough not to make this sort of thing happen. It takes, like, 15 minutes of extra training and one extra procedure to flag allergy orders and double-check them before they're taken to the table. This would be reasonable care. There are dangerous cleaning products. Dangerous construction supplies. Plenty of working-class people manage to handle these things responsibly, with proper training. You don't have to have a degree to deal with this kind of thing. Working-class people are not idiots who can't manage to handle this kind of situation without $50k in student loans. I think waiters should be paid better and more stably, but that's a completely separate issue, here. Allergy = potential death = make sure you double-check that order even if you're busy. This is not rocket science or brain surgery or anything that genuinely requires a greater level of education.

So, either this waiter really was negligent... or management doesn't actually have real procedures and training in place for this, in which case I think it's entirely possible they're going after the wrong person. The one thing I'll agree with is that it shouldn't just be a matter of expecting waiters to figure out their own personal procedures for verifying food safety. I'm not saying that having higher expectations of wait staff means that this particular one was at fault. It just means that normal people can absolutely be trained to deal with this kind of thing, and that a failure here is a failure somewhere on the part of either the waiter or the restaurant.

A lot of the "defense" here comes off sounding like "you can't expect your cleaning person not to mix bleach and ammonia, that's chemistry and way too complicated!" Working class people manage to survive their own food allergies all the time; waiters can be taught to handle them appropriately without having to be paid like nurses.
posted by Sequence at 10:22 AM on August 5, 2016 [38 favorites]


How come the kitchen staff don't share any of the blame here? It's not clear from the articles that the waiter didn't relay an order for beef tartare. if even the customer couldn't tell it wasn't beef, not sure how the waiter was supposed to
posted by Hoopo at 10:22 AM on August 5, 2016 [2 favorites]


The customer ordered beef tartar. Why would the waiter bother to tell the cooks about a salmon allergy for a beef dish?

Because of cross contamination.
posted by futz at 10:23 AM on August 5, 2016 [11 favorites]


Eating out is not a human right.

I posted this metatalk because to me, it pretty much is.
posted by ambrosen at 10:23 AM on August 5, 2016 [15 favorites]


Oh and yeah, I might be in favor of that major overhaul I spoke of above. The restaraunt industry (at least here in the USA, which is what I know about personally) is pretty broken in a lot of ways. I just don't think it's very likely to happen, whereas I do think that some meaningful reform might be feasible in the near future.
posted by Anticipation Of A New Lover's Arrival, The at 10:24 AM on August 5, 2016


People keep saying that you can "double-check" and that means you'll have an error rate of 0%. This is not how humans work and it's weird to think that this is a procedure that would eliminate literally all mistakes.

If you could achieve a 0% error rate in some procedure by just saying "Oh it's important that I not screw this up", we would not have thousands of medical mistakes every year.
posted by 0xFCAF at 10:26 AM on August 5, 2016 [29 favorites]


It takes, like, 15 minutes of extra training and one extra procedure to flag allergy orders and double-check them before they're taken to the table.

Sure, ok. And then it's all for naught because the server mixed up who was sitting where at the table.

Getting every order right forever is not a simple problem. It requires a careful, slow approach from start to finish. There have to be checks and double checks. Even the customers would have to cooperate by getting unique identifiers or staying in the same seat or something like that.
posted by Mitrovarr at 10:26 AM on August 5, 2016 [1 favorite]


I mean, yes, I think waiters could get paid more, but literally the very least you should be able to expect from a waiter is that they get your order right, especially if you have identified an issue.

And yet, if you google "surgeon removes wrong leg" you will discover that people who have a lot more training and a lot higher pay still make basic mistakes. Nobody can expect anyone to not make mistakes. The best we can do, as service providers, service receivers, institutions, etc, is to build redundant protections into the things we do where the consequences are potentially severe. That means that the restaurants should have allergy processes in place and servers should follow them and patrons with severe allergies should carry epi pens. (Or perhaps restaurants should have epi pens?)
posted by jacquilynne at 10:26 AM on August 5, 2016 [14 favorites]


But in actual restaurants, where there is a service staff? Happy, tired, well-fed, and well compensated.

Maybe the front of the house staff. I'd get paid peanuts to prepare and cook food, and get yelled at by wait staff who were bringing in hundreds every night after tips because I couldn't make things cook faster.
posted by Hoopo at 10:27 AM on August 5, 2016 [3 favorites]


Mr. Ant is extremely allergic to tree nuts (walnuts, hazelnuts and the like. Peanuts aren't nuts; they're legumes.) Once or twice a year he'll get something containing nuts or that's been in contact with nuts and it sets off a reaction. In a way, it's fortunate that he is so allergic. When he takes a problematic bite, his lips start tingling and itching before he can swallow.

He's only had one genuinely scary allergic event in a restaurant. A local restaurant accidentally made a key lime pie with the hazelnut crust they use for their turtle pie. It was scary, but it was an accident.
posted by workerant at 10:27 AM on August 5, 2016 [3 favorites]


[Folks, please try to cool it a little in here; people have varying experiences with and opinions about restaurant experiences, and that's fine as something to discuss, but if you're getting into an escalating "no u!" sort of dynamic about it it's time to just take a break from the thread rather than dig in further.]
posted by cortex (staff) at 10:28 AM on August 5, 2016 [1 favorite]


With respect, I disagree that food safety for pathogens isn't a good model for this. All decently run kitchens have procedures in place and take extra care to avoid disease, even down to making sure all surfaces in commercial kitchens are built out of the right materials. There's a case where indeed changes have been made to greatly improve food safety, and those practices are enforced by law.

There's not particular reason to me that some sort of allergy safety could not be similarly implemented, for reasonable cost and care. That might be as simple as training kitchen staff how to avoid cross contamination (which they already should be doing for raw meats, for example), and getting front of house equipped to have the right conversation with the customer and communicate that to the kitchen.

There would be an incremental cost, of course, which is why this has to be done by government via regulation, like the pathogen safety laws. Everyone plays by the same rules, and so has to build in the same cost structure in their pricing.
posted by bonehead at 10:30 AM on August 5, 2016 [9 favorites]


I put myself through college working in restaurants, and loved the hell out of it.

Then you clearly have not worked in the food service industry for maybe like 30 years? Because that is like the farthest thing from my experience (4 different fast food and a food-prep-related business.) and everyone I know, and also it would be literally impossible given current wages and the cost of college? Things change?


This is totally ludicrous to me. My grandfather died because of a misapplication of medicine done by a doctor who had spent maybe 10 minutes with him and didn't notice a very clear point on his chart. We couldn't afford the lawsuit and so the doctor got away scott free, still practicing there. Even if we had sued, we'd have gotten some malpractice insurance money but the doctor would still be fine. Grandpa is still dead either way.
The doctor had years and years of training and experience, his entire job was making sure my grandfather did not die under his care (unless they couldn't do any more for him.) and he made a very human error, and that is a thing I am told by everyone who I tell this story to.

They're right, it was a human error. So was this waiter, and they did not go to medical school, are not paid hundreds of thousands of dollars, and who generally just need to get the food out fast and cooked.

Like, more training would be good, but unless you all would like to start doubling your restaurant bills nothing is going to change. They already DO do food allergy training at every place I worked. Sometimes people fuck up, but it's only ever the people at the bottom who have to pay for their mistakes.
posted by neonrev at 10:32 AM on August 5, 2016 [24 favorites]


Like honestly, if I wanted to be 100% sure that I would never accidentally kill someone by serving them the wrong latte, the only thing I could have done was quit.

I'm an intelligent, conscientious person. I know more about food allergies than average--and not because they were meaningfully covered in the food safety course I had to take (and pay for). But I'm not perfect. You simply cannot expect me to be perfect.

Yes, getting your order right is the basic function of a waiter, but that doesn't mean that there are systems in place to ensure that happens 100% of the time. It's simply unreasonable to expect that of a person. Hell, it would be unreasonable even if we were talking about professionals with intense training, and not low-paid, undertrained workers in a chaotic environment.

That's why you have to have systematic solutions, instead of blaming waitstaff. We learned that lesson in other industries and we can apply it here. Make increased training about food allergies mandatory, and make employers cover the fees. Make certain procedures for handling food allergies mandatory as well. Go after management, not waiters, when a lack of procedures results in harm. Go after waiters when those procedures are in place and they wilfully fail to follow them.

Like, this--

On the other hand, here we are dealing with a case where the person wasn't served a tiny amount and reacted to minuscule contamination, but instead was literally given an entire plate of exactly the thing he said he was allergic to.

--can easily happen due to normal human mistakes, especially in a restaurant, especially when the dishes look similar. It doesn't take an unusual level of carelessness.

And this--

or management doesn't actually have real procedures and training in place for this

--is true of many, many places. We don't have the details for this place, but my guess would be that it's true, just based on probability.
posted by Kutsuwamushi at 10:32 AM on August 5, 2016 [26 favorites]


I like the idea of restaurants keeping epipens around, just in case. Like defibrillators.
posted by BentFranklin at 10:34 AM on August 5, 2016 [11 favorites]


Is anybody here arguing for servers to get orders 100 percent right? There are risks. There are risks for people without allergies. Your server could serve you undercooked chicken and kill you.

And your family could sue for that, and if it was determined the restaurant was guilty of neglect, they would win. The same standard should exist for people with allergies. If there is no neglect, if there is no negligence, but it was an unfortunate accident, there will be no fines or punishment, because sometimes accidents happen.

If you fail to write down the order, get drinks, goof around, don't tell the kitchen staff, and serve the person exactly the thing they said they were allergic to? That's not an accident. It's negligence.
posted by maxsparber at 10:34 AM on August 5, 2016 [17 favorites]


I mean, yes, I think waiters could get paid more, but literally the very least you should be able to expect from a waiter is that they get your order right, especially if you have identified an issue.

Getting your order right is the bare minimum expectation. But serving is not treated like a profession where failing to meet the bare minimum will kill people. Servers who fuck up orders should expect to be no-tipped or maybe fired. But people aren't signing up to be caregivers for minimum wage and minimal training.


There are dangerous cleaning products. Dangerous construction supplies. Plenty of working-class people manage to handle these things responsibly, with proper training. You don't have to have a degree to deal with this kind of thing. Working-class people are not idiots who can't manage to handle this kind of situation without $50k in student loans.

You what training for "dangerous cleaning products" or "dangerous construction supplies" looks like? Don't ever mix these two chemicals. Always wear a harness when you are on a roof. Never plug X cord into Y jack. They are absolutes. There might a whole lot of them, and some of them have conditionals, but they are a single set of rules that are the same all the time, every day.

Working class people manage to survive their own food allergies all the time; waiters can be taught to handle them appropriately without having to be paid like nurses.

Individual food allergies are like ammonia and bleach -- never mix them, never eat nuts. Done. Those who want to put all of the blame on the waiters are expecting them to act like nurses -- to treat each customer/patient as an individual case, keep in mind all of the potential interactions, and act proactively to avoid harm.

Nurses are fucking expensive, and underpaid for what they do. If you want to see a world where waiters are at least getting the same pay as underpaid nurses (and are supported by the same procedures that help to avoid medical errors because nurses are human) that's fine with me, but you need to own up to the costs of what you're asking for.

I mean honestly -- do people think that waiters want to fuck up orders? When, in North America, it could lead to a direct hit to their pay (no tip), or getting fired? Of course not.
posted by sparklemotion at 10:34 AM on August 5, 2016 [14 favorites]


Brandon Blatcher: have your partner take a first bite

Worth noting: many food allergies are to ingredients that aren't necessarily easily detectable by taste. I have a shellfish allergy. If a dish contains say, diced shrimp or crab meat and other textures and strong flavors, there may very well not be a taste to detect. A friend is allergic to citrus. She doesn't eat out very much on purpose. A couple of my family members are allergic to corn products, which is used in practically everything these days.

In many cases, having someone else take a bite isn't going to solve anything. Used in conjunction with common sense practices it may help sometimes?

and you should double check to make sure you brought you Epy pen inside with you.

Expanding on this: an Epi-pen is emergency intervention for anaphylaxis -- a stop gap which buys a person in crisis time so they can get to a hospital or treatment center. There's no guarantee it will work effectively. Anyone with a severe food allergy should definitely (and probably does) take other precautions so they minimize the chance they may have to rely on one.
posted by zarq at 10:34 AM on August 5, 2016 [9 favorites]


You folks discussing how we with allergies should act seem to be missing the twin notions of acceptable risk and risk-benefit tradeoffs. (Guy with a peanut/tree nut allergy here who's gone into anaphylaxis twice; as you can imagine, I've spent a lot of time thinking about this.) Every week or so I'll make a decision of the form "this action carries with it a risk on the order of 1 in 1e4 of causing my death; it's worth it for the opportunity to spend time with my friends."

This is not a binary thing: you can't remove risk entirely, so what you have to do is decide make choices that reduce it to a level that you can live with---say, not eating Thai food, 'cause so many items have peanuts that you're just about guaranteed to run into cross-contamination problems. (Even if you don't, let me tell you that is one stressful meal.)
posted by golwengaud at 10:37 AM on August 5, 2016 [25 favorites]


What does "giv[ing] a fuck about your allergies" look like?

Pretty much the same thing as giving a fuck about your order, but with the added knowledge that if you fuck up the order, instead of giving the person a free drink, you might kill them.


- training, certification, and oversight like fugu chefs pretty much converges on the $2000 green salad.

- we can't pay servers like we do and get the kind of attention we expect from medical professionals. that is ludicrous.

- criminal? yeah, no.

dude says it better
posted by j_curiouser at 10:37 AM on August 5, 2016 [3 favorites]


I mean honestly -- do people think that waiters want to fuck up orders?

I've known quite a few who did not care if they fucked up orders. Negligence does not require someone to actively want to hurt someone. Just not to take the precautions to avoid it.

I'm sorry if you think addressing food allergies is too much work to expect of a low-paid employee. It is, however, required by law, just as other basics for health and safety are required. And of course it can be done. Most people with allergies manage to eat out without getting killed by their restaurant. It's not an unreasonable expectation.
posted by maxsparber at 10:38 AM on August 5, 2016 [18 favorites]


Sure, ok. And then it's all for naught because the server mixed up who was sitting where at the table.

"OK! Who had the beef tartare?"

Servers are not required to be mute. Even a white tablecloth joint like McCormick & Schmidt will find the servers chirping "Rare, with the marsala reduction?", rather than just plop the plate down in front of someone.

I don't think our waiter in the article should face criminal charges. But he damned well needs a quick retraining. Notate the ticket. It's printed out via computer? Type it in. You can't type it in? Snatch it off the printer and write it on the ticket. Tell Chef "salmon allergy on table 4!" Check. Double check. Then check at service.

The article says the server didn't write the order down. That's where it all falls apart. The diner did what he was supposed to do. Stop blaming the poor bastard for wanting to have a nice meal out.
posted by MissySedai at 10:41 AM on August 5, 2016 [8 favorites]


I do appreciate that the guy is getting crucified for not bringing an epi-pen when he brought a doctor.
posted by maxsparber at 10:42 AM on August 5, 2016 [33 favorites]


This isn't somebody serving me olives when I asked that they be removed. This is someone getting the order exactly wrong because they did not care enough to get it right.

so, basically, 15% of all restaurant experiences. keep asking yourself, "what do we pay them, again?"
posted by j_curiouser at 10:43 AM on August 5, 2016 [3 favorites]


I'm really shocked at the victim-blaming here. Bring his own taster, never leave the house? Really, those poors, why don't they just eat cake?

It's not brain surgery; it's: don't bring someone something they explicitly told you they're allergic to. Either don't bring them food, or if you bring it, make sure it isn't, say, salmon. Simple as that.

Server doesn't need retrained, he needs fired. Restaurant needs sued, because they were negligent in their training and management. Of simple, simple things.
posted by Dashy at 10:46 AM on August 5, 2016 [16 favorites]


I'm not hugely in favor of the waiter here getting criminal charges, but it does sound like he deserves at least some of the blame. That said, this is a criminally underpaid and overworked position, and it's completely understandable that he would make a mistake. I agree with others that this is a systemic problem. This one waiter is not the single point on which food allergy safety rests.

But also, maybe it's a little bit hyperbolic to say we'll have to train people to be nurses? Or treat everything like fugu? Seriously, just put a system in place so there's a clear protocol to follow when someone has an allergy. It doesn't have to be this huge burden on anyone. It's not like people are asking wait staff to intuit what their allergies are or intubate them as needed. Kitchens are already 90% prepared to handle this stuff anyway. There's already no cross contamination, and that's going to be your biggest issue beyond just being sure not to put peanuts or salmon or tomatoes in something.

No one is asking wait staff to assume full responsibility for anyone's allergy. But they're part of an industry that manages to serve people without killing them all the time, and when something does go wrong, it's not crazy to look at why and how it happened and consider if anything needs to change.
posted by teponaztli at 10:48 AM on August 5, 2016 [11 favorites]


I have celiac disease, diagnosed over 10 years ago. This makes me only an expert in the risks I am personally willing to take when eating out, which is to say:

I am not going to risk going to the hospital and being in bed with savage pain and vomiting for MONTHS because I want to eat/order out.

I'm a person with a serious autoimmune disease and I would never expect wait staff or kitchen staff to be 100% certain I am consuming safe food because I don't think it's their job.

Think of it this way: my mom has a deathly allergy to cat dander and I have four cats. As much as my mom wants to hang out at my house, we know there's no way I can 100% scrub cat dander from my house in a way that can guarantee that my home is safe for her to enter. My mom has every right to enter my house but knows she is risking her life to do this, therefore it's not smart for her to enter my house.

Similarly, I have every right to eat out but it just isn't smart for me to expect that my food/plates/silverware will be 100% contaminant-free.

It's MY disease, I am the one who is responsible for my own safety and health.

As to this particular story, it's terrible. It's also the reason I only eat/order from a handful of places that I know won't make me sick.
posted by yes I said yes I will Yes at 10:49 AM on August 5, 2016 [12 favorites]


>Individual food allergies are like ammonia and bleach -- never mix them, never eat nuts. Done.

If this common knowledge why didn't the waiter inform the kitchen that the man had a salmon allergy? Cross contamination is a huge issue in a kitchen. Assuming that this is true:

FTA: "At the time of the order, the waiter took no notes and never went to the kitchen to talk with staff," Carrier said.
posted by futz at 10:49 AM on August 5, 2016 [1 favorite]


It is not to much to address it (they already do), but to completely eliminate allergy related mistakes would require basically making people literally perfect at their jobs, all the time. This is not a standard we hold any other job to as a culture. We are literally blaming a guy for having made a mistake, one that almost killed someone, something he already has to live with, and now are taking legal actions against him that we don't when actual people whose entire job is human health make mistakes that kill people.

The diner made no mistakes, I don't blame him in the least. The server or the kitchen staff made a mistake. Unless you want food service employees held up to higher standards than motherfucking doctors and to pay them for that level of service, then I don't see how this is a problem that can be solved. Ya'll are both wanting to have people cook and bring you food at a higher level of service than you can provide yourselves, and also to not have to pay very much for the privilege.

Negligence absolutely does not need to exist in order for a mistake to be made. Has no one here ever been tired and misheard someone? Forgot to mention something? This shit happens and it sucks and it isn't the fault of the diner, but the server isn't a shitty asshole who doesn't care because they made one identifiable mistake.
posted by neonrev at 10:50 AM on August 5, 2016 [11 favorites]


I was eating out with a somewhat kooky friend once and she told the waiter when we first sat down that she was allergic to fish. AND THEN SHE ORDERED FISH FOR DINNER. (Because of course she wasn't actually allergic, just making conversation in a weird way.) The waiter was very confused and eventually brought her fish.

The point is that getting it right is going to be impossible unless allergic people carry around, I don't know, special ID cards that inform the kitchen exactly what they're allergic to and the dish comes back with a form including the list of ingredients. Which maybe should be done, but it is far outside an individual waiter's sphere of responsibility.
posted by miyabo at 10:52 AM on August 5, 2016 [2 favorites]


It is not to much to address it (they already do), but to completely eliminate allergy related mistakes would require basically making people literally perfect at their jobs, all the time.

Literally nobody in this thread has asked for that.

As for the server, yes, he was shitty. He was a shitty asshole.
posted by maxsparber at 10:52 AM on August 5, 2016 [11 favorites]


I've known quite a few who did not care if they fucked up orders. Negligence does not require someone to actively want to hurt someone. Just not to take the precautions to avoid it.
Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.[1] The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.
"the precautions to avoid it" come on a spectrum, and only the failure to do what an otherwise reasonable person would do is negligence. The waiter in this case could have walked into the kitchen, thrown all the salmon in the bin, and then placed the order (but that wouldn't have been reasonable), the waiter could have tasted the food when it came out (unreasonable), the waiter could have walked into the kitchen, and watched the cooks prepare ever step (some folks here probably think that's reasonable), the waiter could have told the cooks about the allergy (I argue that a reasonably prudent person wouldn't necessarily do that if there was no risk of cross contamination), etc, etc, etc.
posted by sparklemotion at 10:52 AM on August 5, 2016


I argue that a reasonably prudent person wouldn't necessarily do that if there was no risk of cross contamination

Well, gosh, it seems like a pretty big risk of cross contamination, given that they actually managed to contaminate an entire beef dish with fish to the point of replacing it entirely.
posted by maxsparber at 10:54 AM on August 5, 2016 [14 favorites]


I argue that a reasonably prudent person wouldn't necessarily do that if there was no risk of cross contamination

In a restaurant kitchen? ok.
posted by futz at 10:58 AM on August 5, 2016 [1 favorite]


... the waiter could have remembered that the customer was allergic to salmon, and not given him salmon. Seems kinda like a reasonably prudent precaution.
posted by Dashy at 10:58 AM on August 5, 2016 [4 favorites]


In any kitchen.
posted by futz at 10:58 AM on August 5, 2016


I feel like we are missing some information here. What would the typical procedure for placing the order be? Is it electronic and that's why the waiter didn't go back to the kitchen? I could easily see a scenario where the waiter is like "hm, beef tartare, that won't have salmon in it, we're good, no need to pester the cooks" and then he gets distracted and doesn't realize that what's on the plate is the wrong thing. And since the person who ordered it couldn't tell the difference at first glance (while normally beef and salmon look quite different) it might not even have been natural to realize the difference if you did look.

I mean, it's such a bizarre mistake, to get a whole plate full of something you didn't order and that is actually dangerous to you - it leads me to wonder if there's not some other mitigating circumstance.

This story does fall into the "bad working class person is stupid and bad, let's pile on" format where so often details emerge later that complicate things.

Obviously if the dude literally needed to tell the kitchen in person "Not salmon" in order for it to be not salmon, and if he knew that he needed to do this, then it was pretty neglectful.
posted by Frowner at 11:00 AM on August 5, 2016 [8 favorites]


Well, gosh, it seems like a pretty big risk of cross contamination, given that they actually managed to contaminate an entire beef dish with fish to the point of replacing it entirely.

That's not cross-contamination. Cross-contamination is getting chocolate in my peanut butter, not putting turkish delight in a reese's pieces wrapper.

It's possible that this restaurant has procedures in place such that all implements used in the cooking of fish are always kept separate from those used in the cooking of beef. In that case, if a waiter places an order for beef, they shouldn't have to worry about bits of fish getting into the beef. So a reasonable waiter could assume that when they put in an order for beef they got all beef and no fish.

. the waiter could have remembered that the customer was allergic to salmon, and not given him salmon. Seems kinda like a reasonably prudent precaution.

Do we have any evidence to back up the assertion that the waiter knew that he was giving the patron salmon? Because my read on both articles says that he didn't. Yeah, maybe he should have known, but that's a big difference.
posted by sparklemotion at 11:00 AM on August 5, 2016 [1 favorite]


As for the server, yes, he was shitty. He was a shitty asshole.

yknow we don't actually have the server's side of the story here, just the word of the guy who is planning on suing the restaurant for damages and presumably didn't follow him into the kitchen to hear what he did or didn't tell the cooks

and yeah, hey, if your order gets fucked up and you go into a coma because of your food allergy, sure, sue the restaurant, who is responsible for training staff and taking the safety of its customers seriously. but unless the server actually literally was like 'fuck this guy, I'm bringing him salmon for lulz,' charging him with criminal negligence just seems like screaming insanity to me. we seriously do not pay wait staff enough to put life or fucking death responsibility on them.
posted by prize bull octorok at 11:02 AM on August 5, 2016 [45 favorites]


I argue that a reasonably prudent person wouldn't necessarily do that if there was no risk of cross contamination

Seems to me that it should be a matter of course for a reasonably prudent person to pass along allergy information provided by diners to the kitchen as a matter of course. I really, really don't understand why so many people are elevating this as though a diner with allergies is requesting a clean room. Nor do I understand why so many people are convinced that this wasn't (or was) negligence -- figuring that out is what the court is for. Do you honestly think that a news report has given you sufficiently accurate detail to make such a judgment? Of the times when I have had personal knowledge about an event which was reported on by news media, I have literally never seen a case where they didn't get some detail wrong in their reporting.
posted by biogeo at 11:03 AM on August 5, 2016 [5 favorites]


Hey maxsparber, it's a little late and maybe I should just let it go, but your response to the intro paragraph of my comment above totally ignored the actual meat of the comment.

You quoted and refuted the bit where I said I thought it was probably impossible to totally eliminate the risk of allergens in restaurant food, but completely ignored my main point which was that I think there are some real common-sense regulations we could and should implement which would significantly reduce risk and create a standard of due diligence against which potential negligence could be judged.

Not cool, man. Not cool.
posted by Anticipation Of A New Lover's Arrival, The at 11:05 AM on August 5, 2016 [5 favorites]


To ascribe to criminal negligence what can be more easily ascribed to being human is absolutely asking for people to be perfect. People make mistakes, sometimes they hurt people. Ordinarily the employer takes on the responsibility, but I guess we're okay slagging this dude for doing stuff literally all of us do every single day.
I know, I've worked 10 hours shifts in restaurants, and if any of you would like to come and do that and not make a mistake because you're tired, you've delivered 10 orders in the last hour, you just fucking confused "Allergic to salmon, I want Beef" because you have heard maybe 100 different orders today and honestly, seriously, sometimes people get tired and fuck up.
But this has happened before and will happen again even if we make food service workers go to 4 year school to learn about food safety, because humans are human.

I have a lot of sympathy for the server, because I've had that kind of job pretty recently, was over worked and under-paid and because I made mistakes because I got tired or was juggling 10 orders, all of which need to go out asap, and if one of my mistakes had almost killed someone I'd be devastated.

On preview: AoANLAT, I think that was directed at me, but I totally agree with

there are some real common-sense regulations we could and should implement which would significantly reduce risk and create a standard of due diligence against which potential negligence could be judged.
posted by neonrev at 11:08 AM on August 5, 2016 [9 favorites]


I honestly can't believe that people think it would be appropriate to expect someone getting paid sub-minimum wage to perform a complex task within a rickety system perfectly or otherwise go to jail for killing someone. Many, many higher-compensated, better-trained people in better-organized systems still make mistakes. To get your average brief from a high-paid law firm out the door without a readily identifiable error takes an investment of time and money like you would not believe--I am talking tens of thousands of dollars, hundreds of person-hours--and often that error creeps in anyway. Who would even take the server's job, under those conditions, except people already so downtrodden that they're unlikely to have the necessary competence anyway?

It's awful what happened to this guy. Depending on the restaurant's overall procedures, there may or may not be a case for civil negligence against it. But a lot of folks posting here seem to have zero, zero clue about how hard it is to perform any multi-step task with a reliably high degree of accuracy. Unless you're ready to pay your servers and cooks like surgeons or pilots (and to pay to retool every single restaurant to properly facilitate this 100% correct execution of orders), you're not getting it.
posted by praemunire at 11:09 AM on August 5, 2016 [35 favorites]


Do we have any evidence to back up the assertion that the waiter knew that he was giving the patron salmon? Because my read on both articles says that he didn't. Yeah, maybe he should have known, but that's a big difference.

I think it's reasonably prudent to expect a waiter to know what he is serving. And thus that mindlessly slinging food at a patron who has noted an allergy, is in fact negligent.
posted by Dashy at 11:10 AM on August 5, 2016 [5 favorites]


Seems to me that it should be a matter of course for a reasonably prudent person to pass along allergy information provided by diners to the kitchen as a matter of course. I really, really don't understand why so many people are elevating this as though a diner with allergies is requesting a clean room.

Ok, let's try another tactic. What if he did tell the kitchen about the allergy. In writing, in triplicate. What if the kitchen still fucked up the order?

He still delivered the food to the customer, so is he still a criminal asshole?

What if, based on how this restaurant is set up, there wasn't a direct way for him to communicate anything besides the order to the kitchen? Still a criminal asshole?
posted by sparklemotion at 11:11 AM on August 5, 2016 [1 favorite]


And surgeons and pilots are not generally criminally charged when they screw up, even if it costs lives. Fired or sued, yes. But you'd have to be drunk, lying about your credentials, or staggeringly incompetent to get criminally charged.
posted by miyabo at 11:11 AM on August 5, 2016 [19 favorites]


mindlessly slinging food

apparently the salmon-and-mayonnaise concoction looked enough like steak tartare that it fooled the diner, too
posted by prize bull octorok at 11:13 AM on August 5, 2016 [13 favorites]


Are we back to saying the diner should have DNA-checked his dinner? I don't think it's too much to expect for him to be given what he was ordered.
posted by Dashy at 11:15 AM on August 5, 2016 [1 favorite]


Okay, here is something I notice:

Waiters/former waiters in this thread are saying that based on their experience, even with good intentions and care, mistakes can still happen. That seems like an important data point that suggests that this is a structural problem which requires structural understanding and mitigation. Whether or not this individual waiter was negligent, it seems like various mefites feel that even a non-negligent waiter could make a mistake which makes an allergic person very ill.

I'm going to assume that mefite waiters are telling the truth as they've experienced it.

If that's the case, it seems like several things are true: we aren't going to be able to prevent all serious allergic reactions even with the best intentions; there may be some technical fixes that don't require superhuman abilities from staff which would mitigate risk; and for some restaurants which serve lots of allergens, it might be a good idea to have an epi-pen on hand.

I would also bet that you could in fact run a restaurant with higher-paid cooks and servers where you did in fact have extra-super-duper procedures in place and intended to have it be an on-purpose allergy-safe restaurant.
posted by Frowner at 11:16 AM on August 5, 2016 [26 favorites]


This is just so bizarre. To restate, my own grandfather died to to a medical error, and I've spent more time trying to find a place of understanding and acceptance of the doctor's error and how they are human and make mistakes just like me than anyone here seems willing to extend to a minimum wage worker at a restaurant. What is going on? Why is he so directly to blame when we don't blame anyone else directly for their mistakes?
posted by neonrev at 11:17 AM on August 5, 2016 [15 favorites]


I feel like medical malpractice isn't a good model to be comparing this incident against. I can't say what things are like for pilots, but in the case of doctors there's an absolute mountain of medicine-specific legislation and case law that makes the medical setting a bit of a special case, legally speaking. That doesn't exist for restaurants, and I'd argue that medicine would probably be a poor model to base restaurant-related legislation off of, since the two industries operate very differently and are perceived very differently by the public.

I'm not trying to use what I just said as an argument for or against criminal negligence in this specific case, I'm just saying that I don't think it's a very useful comparison for people to be making.
posted by Anticipation Of A New Lover's Arrival, The at 11:18 AM on August 5, 2016 [1 favorite]


Another data point, I now manufacture medical equipment for a living. If I send out flawed equipment and it ends up hurting someone (although the nature of what I make renders a fatal mistake almost impossible.) it will be blamed on my employer, and then he will determine the nature of my mistake and take steps to resolve it and prevent similar mistakes in the future, and if he determines I fucked up negligently, then he fires me. I don't see why this should be any different.

The reason I bring up medical malpractice is because it's an example of the highest level of care and regulation we have, and mistakes are still made. They are not similar in most ways, but a good example of how the best trained amoung us can still screw up.
posted by neonrev at 11:23 AM on August 5, 2016 [4 favorites]


Neonrev, I think maybe it's because in the case of doctors we tend to assume they are doing their best and that they give a shit even if they sometimes fuck up in really inexcusable ways, whereas with this waiter many people seem to assume that he just did not really give a fuck. There's no way we can know that, but lots of people here do seem happy to make that assumption.

For what it's worth, "giving a fuck" seems to me like the main difference between an honest (if potentially still inexcusable) mistake, and actual negligence. That is to say, did the waiter care whether the patron's allergen disclosure was respected? Did he just have a particularly ill-timed brain fart, perhaps because the restaurant was slammed, the lighting was poor, and he had a million other demands on his mind; or did he just not even bother trying to make sure that the customer's food wasn't contaminated with (or made entirely of) salmon because he didn't think it was important? We don't know, but apparently it's enough of a question that a court is going to try and find out.
posted by Anticipation Of A New Lover's Arrival, The at 11:24 AM on August 5, 2016 [1 favorite]


we seriously do not pay wait staff enough to put life or fucking death responsibility on them.

I mean, I agree that waitstaff are not paid enough, but all kinds of people take on life or death responsibilities every day, for little or no money. Cabbies don't make that much either, but if they get drunk or run a light and kill someone, we don't just shrug our shoulders.
posted by enn at 11:25 AM on August 5, 2016 [14 favorites]


Are we back to saying the diner should have DNA-checked his dinner?

I'm just objecting to the characterization of the server as "mindless," or an "asshole," or, uh, "criminally negligent," in the absence of any objective information about how they performed their job that night or how, exactly, the wrong dish got served.
posted by prize bull octorok at 11:26 AM on August 5, 2016 [8 favorites]


neonrev: I don't see why this should be any different.

Because you're a professional in a health-critical field and they're a server?
posted by Mitrovarr at 11:27 AM on August 5, 2016


Ok, waiters aren't paid enough to be perfect in all ways and manner, fine. Are they paid enough to write down an order, talk to kitchen staff about special needs, announce the meal they're serving, verify that they're serving the right meal to the right customer, and not drink with other guests while they're working? Are they paid enough to do any one of those things? Because this negligence case hinges on this waiter not doing any of those things, when doing any one or two of them could have avoided this situation, and all of them fall very reasonably under the basic job description.

The argument isn't that the waiter made a mistake despite acquitting his duties acceptably in other respects. The argument is that the waiter did not take reasonable and adequate precautions to prevent error or to do the basics of his job properly.
posted by Errant at 11:28 AM on August 5, 2016 [14 favorites]


I'm pretty new to food allergies myself. Developed one a few years back that I thought I had narrowed down to bananas. It's not fun. But a kiwi set off a similar reaction recently too so now I don't know. I still go to restaurants, and just don't order things with banana. And in some cases I ask when I'm not sure. But yeah, if I ordered a burger and got fried bananas instead of fries I'd be rightly pissed off.

Anyways, all we have in this story is the outcome for the customer and the allegations reported by the police based on the customer's complaint. We have not heard from the waiter at all. Maybe he didn't talk to the kitchen, maybe he did. Maybe he punched in "steak tartare - Salmon allergy" and some sous-chef looked at the chit and saw "salmon tartare". I think we may be a little hasty to assign blame here given the lack of details and maybe we should refrain from calling him a "shitty asshole" or whatever even if we acknowledge that the restaurant made an unacceptable error that could have killed a guy.
posted by Hoopo at 11:30 AM on August 5, 2016 [6 favorites]


but if they get drunk or run a light and kill someone

DWI and running red lights are already illegal

forgetting things/miscommunicating aren't
posted by prize bull octorok at 11:30 AM on August 5, 2016 [6 favorites]


Are they paid enough to write down an order, talk to kitchen staff about special needs, announce the meal they're serving, verify that they're serving the right meal to the right customer, and not drink with other guests while they're working?

Yes, in normal circumstances. Not even close in life or death ones.

I mean, I'm a molecular biologist and if someone told me "oh hey, if you botch these samples someone might die" I might refuse to do it at all and I would absolutely do my job on a totally different fashion if I did do it. You can't just throw life or death consequences on people who aren't paid, trained, or prepared for them!
posted by Mitrovarr at 11:32 AM on August 5, 2016 [16 favorites]


Well, giving the benefit of the doubt to doctors in a way we don't to waiters is exactly the kind of classism that annoys me. I know more than one person in the medical field that went into it uncaringly because it was a good way to make money, and some of them are starting practicing now. Not all doctors are dedicated and caring and bother to read all of a chart, not all waiters are shitty underclass people who don't care about their jobs.

Because you're a professional in a health-critical field and they're a server?

So I guess screw the lower classes because they don't work in as lofty a field as mine? My mistakes are possibly damaging to the long term health of people, and any mistake I make is that, not true of the kinds of mistakes that waiters make all the time (mixing up no onions or whatever, sending out the wrong side) without major issue. I'm protected fully by my employer, and they, knowing exactly how things are supposed to work, are best suited to telling how I screwed up, not the customer, and not even really the courts.
posted by neonrev at 11:34 AM on August 5, 2016 [9 favorites]


Oh, you misunderstood. I was saying that since you are a professional, it's far more reasonable to expect you to deal with life or death things, and take some liability. Whereas I consider a server unqualified for that and any mistake to not be their fault at all (rather they should never be put in that situation.)
posted by Mitrovarr at 11:36 AM on August 5, 2016 [2 favorites]


Because this negligence case hinges on this waiter not doing any of those things, when doing any one or two of them could have avoided this situation, and all of them fall very reasonably under the basic job description.

Respectfully, no. Because an error could occur at any one of those steps, and then you would need to be able to trap the error and identify it, which requires extra steps. For example, the waiter could have written down the order, spoken to the staff, and then the staff screwed it up, and because the dishes aren't visually dissimilar, sadly the diner gets served the allergen. The "basic job description" is seriously not, and could never be, "never write down the wrong order." I'm actually wondering how many people here not in the highly regulated professions actually think they generally perform their own "basic job description" to that degree of precision. I've got news for you: you don't. Not because you're not smart, hard-working, dedicated, caring, a good person, whatever, I'm sure you are, but because you (and I, of course) have a human brain and the human brain is prone to all sorts of errors that require elaborate steps to reliably avoid even in performing tasks that don't require interaction with other similarly-flawed human brains. I'm guessing that if a person walked up to you at your job and asked you to perform an ordinarily noncritical task with the caveat that, if the result was not without error, that person would die, you would probably refuse to take on that responsibility. At the very least, you would have a terrifying time of it, and if your job suddenly became a situation where a person could ask you that at any time, and people did ask it unpredictably (and with a different set of requirements each time) throughout your work-week, you would quit.
posted by praemunire at 11:37 AM on August 5, 2016 [13 favorites]


This is structural in a way that many don't realize: the debate going on here is a proxy for the class warfare by people who afford to eat at restaurants but don't have to work there and don't care how the sausage is made.

Most of the "working class people are be responsible for consumers' lives anyways" is a false argument, because examples like salmonella and taxi drivers apply to every consumer in general. Whereas salmon allergies is a fraction of the population, and you'd have to make a crucially different argument. Hospitals and air flight are, similarly, not the same and not simplistically applicable. It's how you count/model the actual hazards (i.e. answer the question, who does it affect?), and weigh that against the cost of infrastructure needed to counterbalance it—a form of common case optimization.

There are, absolutely, some ways that could help systemically deal with specific food allergies. Computerization, for example, could help a lot and take out some of the human error dimension of it. Even suing the waiter because there's no other recourse, I can understand and even support, because maybe it will trigger some change! But that shouldn't detract from the real reasons and deeper understanding of the issue.
posted by polymodus at 11:38 AM on August 5, 2016 [5 favorites]


"I could have died," says the guy who left his epipen in the car.

We're all so damn ready to have our lawyers on speed dial.
posted by prepmonkey at 11:40 AM on August 5, 2016 [1 favorite]


Oh, you misunderstood. I was saying that since you are a professional, it's far more reasonable to expect you to deal with life or death things, and take some liability. Whereas I consider a server unqualified for that and any mistake to not be their fault at all (rather they should never be put in that situation.)

(My mistake, I thought that went the other direction and that I deserved protections they don't since I work in a medical field. Also, just so everyone knows, your medical equipment is still made by low wage workers, I'm a 'professional' only in that I do something very specific that requires an amount of training. Agreed otherwise though.)
posted by neonrev at 11:41 AM on August 5, 2016


Jinx, mitrovarr!
posted by praemunire at 11:41 AM on August 5, 2016


I'm just objecting to the characterization of the server as "mindless," or an "asshole," or, uh, "criminally negligent," in the absence of any objective information about how they performed their job that night or how, exactly, the wrong dish got served.

There was, in fact, information establishing the server's actions as negligent, in the article.
posted by Dashy at 11:44 AM on August 5, 2016 [1 favorite]


Ok, let's try another tactic. What if he did tell the kitchen about the allergy. In writing, in triplicate. What if the kitchen still fucked up the order?

He still delivered the food to the customer, so is he still a criminal asshole?

What if, based on how this restaurant is set up, there wasn't a direct way for him to communicate anything besides the order to the kitchen? Still a criminal asshole?


I think you are saying you feel angry that this person is being charged for criminal negligence when it is entirely possible that he was following normal procedures for someone in his position. I think that is a valid feeling. I think that you also believe that it is being assumed that he is guilty of criminal negligence. I don't know if others in the thread are making that assumption, but I am not. I assume that he is innocent until proven guilty in a court of law, but that the prosecutors must believe there is sufficient evidence to make a case before a judge/jury. I also assume that journalists usually fail to accurately and completely report the important details of stories like this, and in fact are rewarded with increased readership if they (intentionally or not) distort stories in a way that make them seem more outrageous (see, for example, the "McDonald's hot coffee" lawsuit).

But taking the story as stated, that 1) the diner informed the waiter of his salmon allergy, 2) the diner ordered steak tartar, 3) the waiter did not write down the diner's order, 4) the waiter brought the diner salmon, 5) the diner ate the salmon and nearly died. Is there enough detail to conclude criminal negligence? Not to me. Are there missing details that could prove the waiter was not negligent, for example, that he accurately passed along the diner's instructions to the kitchen, and it was too dim to tell the difference between the salmon and steak tartar dishes? Yes. Are there missing details that could prove the waiter was negligent, for example, that he actually placed the diner's order to the kitchen as salmon, the diner asked to confirm that the dish was free of salmon, and the waiter lied and said yes? Yes. Personally, I doubt that a prosecutor would bother trying to press criminal negligence with only details as thin as are presented here, making me suspect there is more to the story than this, but frankly I don't know.
posted by biogeo at 11:45 AM on August 5, 2016 [6 favorites]


Personally, I doubt that a prosecutor would bother trying to press criminal negligence with only details as thin as are presented here, making me suspect there is more to the story than this, but frankly I don't know.

I basically agree with your analysis, but you have a lot more confidence in prosecutors than I do.
posted by praemunire at 11:47 AM on August 5, 2016 [2 favorites]


We're all so damn ready to have our lawyers on speed dial.

prepmonkey, there is no civil suit here at this point, it's a criminal case being considered by the authorities, not the guy that ate the food. My understanding is that Quebec's laws are also pretty restrictive on damages awards in a lot of cases--not sure about this kind of case in particular though, but with auto accidents and such it's different than most places Ive encountered.

There was, in fact, information establishing the server's actions as negligent, in the article.

Not really tbh. There's allegations, that's it.
posted by Hoopo at 11:48 AM on August 5, 2016 [2 favorites]


I basically agree with your analysis, but you have a lot more confidence in prosecutors than I do.

I have confidence that most people are basically lazy and prefer not to waste their time.
posted by biogeo at 11:51 AM on August 5, 2016


the allegations in the article can be completely true and still aren't sufficient to establish negligence.
posted by prize bull octorok at 11:51 AM on August 5, 2016 [3 favorites]


Also on a more careful re-read of the article, the prosecutors have not actually decided whether to file charges yet, though "the circumstances meet the conditions for a criminal negligence charge."
posted by biogeo at 11:53 AM on August 5, 2016 [1 favorite]


Ok, to recap, the waiter a) did not write down the order, and b) served salmon to someone who explicitly stated he was allergic to salmon. On the basis of that, I used the term "mindlessly slinging" food.

prize bull octorok objected to my use of that term, saying we didn't have information about the server's actions, and that I am insulting servers everywhere.

There is, in fact, factual information about the server's actions. I will argue that those actions were negligent, compared to reasonable expectations of a) at the very least, writing things down, and b) not serving allergens to allergic people. Others won't.
posted by Dashy at 11:55 AM on August 5, 2016 [3 favorites]


I think you are saying you feel angry that this person is being charged for criminal negligence when it is entirely possible that he was following normal procedures for someone in his position. I think that is a valid feeling

Please don't ascribe emotions to Internet comments.

But the rest of this comment is the most cogent and coherent take on my view of the issue at hand that I have seen.

We don't have all the facts, yet some people want to fill the voids with the worst case assumptions.

Others of us think that jail is an inappropriate consequence even if the worst case is true.
posted by sparklemotion at 11:56 AM on August 5, 2016 [3 favorites]


Personally, when a server takes my order without writing it down, I assume that to be because they are good enough at their jobs for them to be able to do that regularly without creating the kinds of minor mistakes (wrong order, no allergy involved, mixing up who got what, what have you) that get them chewed out by a boss, because I tend to assume people try to not get yelled at and are actually trying to do their jobs well, not as a sign of carelessness. It never occurred to me to see it as a sign of negligence, in part because I know from experience that writing something down in a noisy place isn't a guaranteed way not to make a mistake in terms of what someone ordered, because I've done that once before, written down the wrong order because it was loud and I misheard.
posted by neonrev at 11:57 AM on August 5, 2016 [2 favorites]


I'm pretty sure there's restaurants where management doesn't allow servers to write things down because it's classier for them to just remember it perfectly, or whatever
posted by prize bull octorok at 11:58 AM on August 5, 2016 [16 favorites]


Um, it's pretty normal for waiters to not write down orders. They get really good at keeping them all in their minds. You know, the one that you're saying this person lacks, based on the facts allegations listed in the linked article.

You could argue that the waiter should have written down the order in this case since it was so critical (and to cover his ass if nothing else) but as far as I know there's no legal standard saying that he had to.
posted by Anticipation Of A New Lover's Arrival, The at 11:59 AM on August 5, 2016 [1 favorite]


So will all the restaurants just put up a sign saying, all food is made in a kitchen that contains fish/nuts/dairy, so there could be cross contamination, eat at your own risk? Like how tons of chocolate bars have a warning that they were made in a factory that deals with nuts too.
posted by Iax at 12:05 PM on August 5, 2016 [2 favorites]


Um, it's pretty normal for waiters to not write down orders. They get really good at keeping them all in their minds. You know, the one that you're saying this person lacks, based on the facts allegations listed in the linked article.

"Really good" nearly killed someone. Maybe that isn't "really good" enough.
posted by Etrigan at 12:05 PM on August 5, 2016 [5 favorites]


Triangulating a little here, here's a case (also mentioned upthread) where a guilty verdict was found and a 6 year (long for England) prison sentence has been given to a restaurant owner in much more aggravating circumstances:
  • The victim died.
  • They were explicitly told the meal was peanut free.
  • The owner was buying ground mixed nuts instead of ground almonds.
  • The owner had been previously warned about it.
  • The owner was running a shoddy organisation.
  • In the EU, it's obligatory to inform people if meals contain any of the 14 most common allergens.
Is this a reasonable sentence given all that? If so, which are the most important factors making this a much less serious issue (presumably the maximum likely sentence is a $100 fine and 12 hours community service)? Because if we break up the different factors like that, maybe we can work out a standard of what counts as a reasonable level of accommodation.
posted by ambrosen at 12:05 PM on August 5, 2016 [8 favorites]


Please don't ascribe emotions to Internet comments

Apologies. Your response to my comment seemed surprisingly heated to me, but I guess I misread.

We don't have all the facts, yet some people want to fill the voids with the worst case assumptions.

I haven't really seen this, mostly just people taking the diner's allegations that the server failed to convey the allergy information to the kitchen at face value. The main point of disagreement seems to be whether this in itself constitutes negligence.

Others of us think that jail is an inappropriate consequence even if the worst case is true.

I agree, so it should be a relief to all of us that according to the article, a law professor said, "based on similar cases [...] the waiter is unlikely to get a prison sentence."
posted by biogeo at 12:07 PM on August 5, 2016 [1 favorite]


I will argue that those actions were negligent, compared to reasonable expectations of a) at the very least, writing things down, and b) not serving allergens to allergic people

Your second point subsumes the entire case. If serving allergens to allergic people is per se negligent, then literally every time it happens, no matter what the circumstances, the server was negligent, even if, say, the diner's enemy switched an item on the plate at the last second unbeknownst to the server. I mean, you can advocate for such a standard, but it's the most extreme one expressed here.
posted by praemunire at 12:12 PM on August 5, 2016 [1 favorite]


Brandon Blatcher: If he wants to roll the dice and then get someone potentially jailed when he hasn't taken a single precaution, I'd suggest that he never eat alone then.

This is a bad faith reading of what occurred here and ignoring parts of the article entirely.

I would consider informing the waitstaff that you are allergic to seafood and salmon to be taking a precaution.

I would also consider ordering a beef dish, that is, one that is ostensibly without seafood and salmon, to also be taking a precaution. If, for some reason, he was under the mistaken belief that the beef dish he had ordered in fact did contain seafood and salmon, then the onus is on the waitstaff, after being informed of his allergy, in consultation with the kitchen, to inform him that yes, this beef dish contains seafood but we can make it without it or would you please consider ordering something else. Or the alternative, having the waitstaff alert the kitchen that he ordered this beef dish and is allergic to seafood, please ensure it is without seafood ingredients.

Past that, sure if you want to get into the business of saying he also has the responsibility of having a professional food taster with him at all times or don't eat out, fine, but let's not ignore the precautions he took here.
posted by Karaage at 12:15 PM on August 5, 2016 [9 favorites]


I'm a waiter. My job is to be the connection between the guest and the kitchen. I'm the last guy between the guest and the meal. If it isn't right, it is, at the end of the day, my fault. If the kitchen made the wrong dish, it's on me to stop it before it gets to the table. If a guest informs me that they have a severe peanut allergy, I tell them the truth: we have dishes containing peanuts and other tree nuts, and while we're happy to use fresh clean cookware to prepare their meal, I can't guarantee there won't be cross-contamination. Because I will put SEVERE NUT ALLERGY on the ticket in bold caps seventeen times. I will highlight it and personally inform the expediter, cooks, and managers. I will inspect the dish before bringing it to the table. But I'm not the one cooking the food. All I can do is give the kitchen the best information I have and guard against their mistakes.

And if your server can't tell the beef from the salmon, then your restaurant is too damn dark.

The server bears some responsibility for allowing this chain of errors to propagate. Whether this was due to negligence or lack of training and supervision is for the courts to decide.
posted by BitterOldPunk at 12:15 PM on August 5, 2016 [35 favorites]


I have a life threatening allergy to a common topical antibiotic. If you put it on my unbroken skin, I will be in full anaphylaxis in less than a minute.

I've discussed it with every medical provider I've ever had. It is documented in my charts.

Yet, several years ago, I saw a doctor for a problem. We discussed options, I explained my allergy to this common medicine. He said he'd phone a prescription to my pharmacy. This pharmacy also had a note in my customer file about the allergy.

I pick up the prescription and go home. As I'm settling in, I open the prescription bag and discover it is the exact medication I told the doctor and the pharmacy that I was severely allergic to. And I didn't notice when I paid for it.

Had I used that medicine and had the expected reaction, I might not have survived.


I never went back to that doctor, but I did explain that this was why.

There are 2 points to this:

1. Mistakes of this sort can happen in even highly regulated contexts

2. I always have to be vigilant. I double check everything. I never let any medical person put anything on or in me without showing me what it is, preferably with label attached.

If I had a deadly food allergy, I would be even more vigilant. Because it's just fucking food, not medicine.
posted by yesster at 12:16 PM on August 5, 2016 [3 favorites]


Those of you who insist that people with food allergies should never eat out have clearly never considered the fact that food you buy at the grocery store to make at home can also be mislabeled and can contain undeclared allergens. In fact about one third of all FDA recalls are over undeclared allergens.

Okay, you may then say to people with food allergies-- don't eat any prepared foods then! Buy whole foods and make things from scratch yourself. Welllll, there's a little problem with that approach, too (I mean aside from the massive inconvenience of literally never eating anything that comes in a can or a box)-- in some cases the mislabeling or contamination of foods with undeclared allergens happens at the source, or during transport. Like the recent recalls when plain wheat flour or cumin were found to be contaminated with peanuts. Sometimes "olive oil" is really unlabeled hazelnut or sunflower oil. Sometimes "crab" is really fish. Sometimes "beef" contains soy. Etcetera etcetera forever.

UNDERSTAND THIS:

There is literally no way for a person with food allergies to eat food that is 100% safe other than growing and preparing all of their own food, from scratch, themselves at all times.


Which is not in any way reasonable for a person to do.

So. What that means is that living a life with food allergies is living with risk. AT ALL TIMES. When you eat at a restaurant you are taking a risk. When you eat at a friend's or a relative's house you are taking a risk. When you buy your own food at the grocery store and carefully check and double-check every label on every item and cook the food yourself at home in a pan that has literally never touched one of your allergens, you are still taking a risk. When you eat basically anything ever you are taking a risk, when you have food allergies. Living with food allergies is living with daily risk management. There is no reasonable way to completely remove the risk of anaphyalxis from your life. You just have to decide which risks are worth taking.

And many, many people with food allergies decide that the risk of eating out is worth taking because the practical, social and professional consequences of literally never eating at a restaurant are ENORMOUS. On the practical end, it's actually very strategically challenging to live in the modern world without EVER eating out. There's no grabbing breakfast at a drivethru on your way in to work because you slept in, no ordering pizza while you're up late working or studying, no eating at an airport restaurant during a layover, no stopping for food on a road trip. (Have you ever tried taking your own food on a 3 day road trip in the summertime? I have. IT'S NOT EASY.)

And the social and professional consequences of avoiding eating out are even more difficult to navigate. I covered this once somewhat already in a previous comment on a previous post, but clearly it needs to be said here again. Shared meals are a huge part of human social interaction, and in the 21st century in the U.S. and Canada, people do a lot of their socializing over shared meals at restaurants. Never eating out, for a person with food allergies, means missing out on family birthday parties, friends' nights out, romantic dates, school field trips, school sports celebrations, PTA breakfasts, business meetings . . . the list is very long. Some restaurants have rules against bringing in outside food, so bringing your own food to every event like that can be challenging-- and even if you succeed at doing so, it can lead to all manner of uncomfortable questions and scrutiny from other people about what you are eating and why you are choosing to eat something different from everyone else. Not sharing group food experiences with other people breaks a social contract. People notice. It sets you apart. It's exclusionary. Have you ever been the one at the office saying "no" to the birthday cake? Because you weren't hungry or because you're cutting carbs or just because you hate lemon cake? How did people around you react? Probably, they questioned you-- they laughed at you-- they went on about how sorry they felt for you-- they ate theatrically in your face-- they tried to make you take some anyway. Now imagine if you faced that sort of experience daily or nearly daily as a consequence of saying "no thank you" or "I can't eat that" or "I've brought my own" every time there was a classroom or office party, every time you went on a date, every time your friends went out to a bar, every time you went to your family's holiday dinner . . . it's exhausting. It's isolating. It's depressing.

Never eating out can be a huge negative impact on quality of life. So most people with food allergies do eat out, sometimes. If you had a food allergy, you might too.

I honestly don't know whether this particular server should be charged with a crime-- I don't feel like I know enough about the server's motivation or actions to judge that. I do think it's definitely negligent, in general, for a server to fail to inform the kitchen staff of a customer's food allergy after the customer has made the allergy clear, and, if the server did not understand how that was negligence, then the restaurant was negligent in training the server. I also do know that people with food allergies have very good reasons to want to eat out in restaurants, and, given that about 1 out of 13 people has a life-threatening food allergy these days, I also firmly believe that, from a business perspective alone, restaurants SHOULD recognize that there are very good reasons to to accommodate people with food allergies. From a public health perspective, our society has very good reasons to come up with laws and regulations that will help ensure the safety of people with food allergies. And from a moral perspective, people with food allergies are people dealing with a very challenging medical condition they never asked for, and we should treat them with respect and kindness and inclusivity in the same way we should treat any person with a disability, or indeed any person, with respect and kindness and inclusivity, in the public sphere.
posted by BlueJae at 12:19 PM on August 5, 2016 [64 favorites]


You can't just throw life or death consequences on people who aren't paid, trained, or prepared for them!

Food handlers in Quebec are required to complete a course and acquire certification indicating that they have been trained in food safety, contamination prevention, and allergy management, and have been so required since at least 2008.
posted by Errant at 12:21 PM on August 5, 2016 [12 favorites]


Personally, I doubt that a prosecutor would bother trying to press criminal negligence with only details as thin as are presented here, making me suspect there is more to the story than this, but frankly I don't know.

My response in this thread hasn't just been to this particular case, but to the argument that he must have been negligent because non-negligent waiters never serve the wrong food.

I think people who are making that argument unfamiliar with food service, deluded about their own abilities, or both. Insisting that "not serving allergens to allergic people" is part of the basic job description does not magically make that a reasonable expectation; it doesn't make it so the industry has procedures in place to prevent dangerous errors.

I would absolutely not comfortable being held responsible for people's lives in this way. I know, from my experience working in food service, how even good staff can make mistakes that end up with someone being given the wrong order.

I seriously question the judgment of anyone who would be comfortable with it, because no one should be.

The appropriate response to being asked to have this level of responsibility for people's lives, while having the lack of training and procedural support that is normal in food service, is to run for the goddamn hills.
posted by Kutsuwamushi at 12:22 PM on August 5, 2016 [5 favorites]


Is this a reasonable sentence given all that? If so, which are the most important factors making this a much less serious issue (presumably the maximum likely sentence is a $100 fine and 12 hours community service)? Because if we break up the different factors like that, maybe we can work out a standard of what counts as a reasonable level of accommodation.

I'd argue that none of these factors really apply here:
  • The victim died. The victim here was harmed, I'll call that even.
  • They were explicitly told the meal was peanut free. The victim here was (probably) told that the beef tartare was salmon free (which is true). The problem is that the victim didn't get the beef tartare.
  • The owner was buying ground mixed nuts instead of ground almonds.
  • The owner had been previously warned about it. Combining these two -- the owner knew that they were risking adding peanuts to a dish and didn't tell anyone about it. In this case, as far as we know, no one realized that they were giving salmon to the victim.
  • The owner was running a shoddy organisation. Insufficient facts. Even if it is true here, it's grounds for suing the restaurant, not jailing the waiter.
  • In the EU, it's obligatory to inform people if meals contain any of the 14 most common allergens. See above -- the owner knowingly lied.
If you change the facts at hand such that the waiter realized that he was holding a plate of salmon and took it too the customer anyways (either b/c he forgot about the allergy, or because he thought it would be no big deal) the analysis looks a lot different.

Ditto if you change the facts at hand such that the customer asked the waiter if there was any salmon served in the restaurant and the waiter said "No."
posted by sparklemotion at 12:23 PM on August 5, 2016


If I had a deadly food allergy, I would be even more vigilant. Because it's just fucking food, not medicine.

The idea that people with food allergies don't know this comes across as very condescending.
posted by biogeo at 12:23 PM on August 5, 2016 [17 favorites]


I'm not saying any procedure would result in a 0% failure rate. I'm saying that what happened here was evidently not the result of following any procedure that was intended to prevent people with severe allergies from receiving incorrect food. "I memorize the stuff they say and then come back and hope I remember right" is not a procedure that includes safety checks. It would not take that much more than that, though, to have caught this.

The whole thing about standards of care is that accidents can still happen, but that they should happen less. We don't just throw up our hands and give up on safety because we can't ensure 100% perfect every time. The whole point of having safety procedures for things like allergies is that you should, when alerted as to someone's allergy, be being more careful than normal with their order. Only being as careful as you'd be for a person without allergies isn't enough. Guaranteeing 100% safety is burdensome; this does not mean that the status quo is actually sufficient. The scary part about this is the fact that almost no care seems to have actually been taken to prevent this from happening, and how many people seem to be unbothered by that.
posted by Sequence at 12:25 PM on August 5, 2016 [6 favorites]


10000X what Blue Jae said, because my rageful typing about dealing with my severe seafood allergy will never be as eloquent as their comments.
posted by larthegreat at 12:25 PM on August 5, 2016 [10 favorites]


If I had a severe allergy to salmon, I'd be carefully inspecting every food item I didn't personally prepare. The whole damned dish was salmon.
posted by yesster at 12:28 PM on August 5, 2016


I'm sad we seem to be in such entrenched camps over this. I think the reason it was such a headline is because it happens so rarely. I know this is in Canada, but I wasn't able to find any statistics.

In 2005 (Last year for when I could find data on all sides I needed), there were aprox. 206 restaurant meals per person sold in the U.S. Google tells me the population of the U.S. in 2005 was 295.5 million. That makes the total number of meals sold 60,873,000,000. (Please correct me if I'm wrong, I'm freehanding this at my desk).

Also in 2005 the CDC noted 11 deaths from food allergies.

Ok then. That means that worst-case scenario (assuming data is correct) that means one person died of food allergies for every 5.5 billion meals sold. Since a large minority of adults self-report at least one food allergy, this seems like a fantastic outcome. I don't mean to diminish the trials of those who do have these allergies. But I do feel like we're doing a pretty good job overall. Maybe we could do better. But at these numbers it does seem like we've reached the realm of unavoidable human mistakes.

(I would love to have better sources, but I no longer have access to academic journals. Also, I realize that this doesn't take into account all the people that do NOT die, but I do not think that data is aggregated anywhere)
posted by sharp pointy objects at 12:32 PM on August 5, 2016 [2 favorites]


Why would he think to check it for salmon? He didn't order salmon.

I have nut allergies, but I didn't check the latte I got just now to see if it had hazelnut flavoring or almond milk by mistake. I ordered a 2% cow milk latte.

Maintaining vigilance around food allergies is exhausting and sucky, and people are eager to jump on you if you let your guard down even in reasonable moments.
posted by cadge at 12:32 PM on August 5, 2016 [17 favorites]


I worked, on an off, in food service from the time I was 11 until my late 30s. Busser, fast food, server, bartender, expediter, dishwasher, regional trainer, supervisor, You name it.

The last restaurant I worked at had a simple rule. Regardless of what the food allergy was, if a guest said they had an allergy, the server told a manager immediately.

Since none of us can be certain of the facts in this case, I will not say that the server was negligent.

However, I have personally witnessed this behavior in other servers, and it sounds exactly like many a server I know who flat out didn't care.

Seriously, just tell the manager and the manager should take care of it from there (esp. if the server mentions the severity of the allergy.) That is really not that much to ask.

I don't have a problem with the order not being written down. I almost never wrote down orders and had very few mistakes.

I am surprised that very few people have even mentioned that the server was drinking with other guests. I believe that speaks to how seriously he takes the job.

But, if you don't want to draw the negligence line at "he didn't tell anyone in authority", when you add in all of the other factors that have already been mentioned certainly seem to show neglect.

As an aside, at that last job, it was beaten into our heads that ALL allergies were reported. If someone had a fish allergy, the managers needed to know, even if all they were doing was having drinks. Why? Our bloody marys had anchovy paste in them.

(Sorry if this disjointed. Trying to give some "inside knowledge" while ppl are still reading, but I'm at work, so don't have time to edit and make it pretty.)
posted by a non mouse, a cow herd at 12:39 PM on August 5, 2016 [25 favorites]


If I had a severe allergy to salmon, I'd be carefully inspecting every food item I didn't personally prepare.

You know, one thing that being a white cishet man who tries to expose himself to other people's experiences and perspectives as much as possible has taught me is that when I start thinking along the lines "If I [had some trait foreign to my own experience], I would [do something I perceive people with that trait as failing to do]," it's time for me to step back and start re-examining my assumptions, because usually it means I've got a huge blind spot that I'm not even aware of.
posted by biogeo at 12:40 PM on August 5, 2016 [36 favorites]


The upthread comments about allergen-warning and allergen-free capability signs in windows and on menus seems to be the direction this is going.
I'm reminded of a Good Food episode last year where chefs who started out making good faith efforts to avoid cross-contamination (dump the station, fresh utensils/cookware, tracking the order through) for rare cases basically got overwhelmed in the last couple of years. Most of them weren't willing to take the risk that they could kill someone if they didn't get it right, and stopped doing substitutions altogether.
I have a coworker with a fairly severe gluten allergy who has a multi-point interrogation that she does before she'll touch anything at a restaurant, repeated every time she returns, in case things have changed.
I have another friend who's daughter has a swell-up-and-die gluten allergy who only takes the kids to restaurants that have robust policies in place...it's actually surprising the number of (typically larger, chain) places that have the capability to guarantee no cross-contamination. It seems to map to places that have slow-changing menus, and regular chain-wide suppliers.
posted by Kreiger at 12:42 PM on August 5, 2016 [2 favorites]


Why would he think to check it for salmon? He didn't order salmon.

Because salmon can kill him, how is that not enough reason. When you cross the street, do you keep going if a car is coming, even if the pedestrian light is green? Do you say " why should I check for incoming traffic, my light is green?"

Maintaining vigilance around food allergies is exhausting and sucky, and people are eager to jump on you if you let your guard down even in reasonable moments.

If it's "sucky" for you whose life depends on it, it's even suckier for the overworked,underpaid stranger , who is suddenly responsible for your life and is not prepared to do so.

As someone with a deadly allergy to a very common medication, if you let your guard down, the results are a lot worse than people jumping on you. So it's something you just get used to, cause your life kinda depends on it.
posted by ariadne_88 at 12:43 PM on August 5, 2016 [3 favorites]


When you cross the street, do you keep going if a car is coming, even if the pedestrian light is green? Do you say " why should I check for incoming traffic, my light is green?"

No, but if the car hits me, the driver is still going to be charged with reckless driving.
posted by biogeo at 12:47 PM on August 5, 2016 [15 favorites]


When you cross the street, do you keep going if a car is coming, even if the pedestrian light is green? Do you say " why should I check for incoming traffic, my light is green?"

I might say it's more like crossing a one-way street and not looking in the wrong-way direction. I expect traffic when I cross the street. I look for it. But I don't always look in curveball directions where I wouldn't reliably expect traffic to be.
posted by cadge at 12:51 PM on August 5, 2016 [11 favorites]


sharp pointy objects, it's very challenging to track the true number of food allergy related deaths because they are not always coded as deaths due to food allergy. Allergic anaphylaxis can cause asphyxiation, heart failure, brain death, other major organ failure, etc., and a death resulting from allergic anaphylaxis can wind up being recorded as a death from any of those majorly bad results of anaphylaxis. I have seen estimates from reasonable authorities on the subject of 150-200 deaths a year. (Yes I know that HuffPo article you linked to specifically attacks that number-- I've seen the article before-- but I'll take the expertise of the actual scientists and doctors I've met who work for organizations like Food Allergy Research and Education-- formerly known as FAAN which is NOT, as that article asserts, a lobbyist organization, but it's a 501(c)(3) nonprofit group that supports food allergy research and public awareness campaigns-- over a single HuffPo article written by an associate professor of Journalism.)

Allergic reactions to food send someone to the emergency room every 3 minutes in the U.S., according to FARE.
posted by BlueJae at 12:52 PM on August 5, 2016 [6 favorites]


it's actually surprising the number of (typically larger, chain) places that have the capability to guarantee no cross-contamination. It seems to map to places that have slow-changing menus, and regular chain-wide suppliers.

Industrialization and standardization have the benefits of both keeping costs down (and profits up) and making it easier to track quality control type stuff.

The recent Gastropod episode on Kosher food touches on this a little. I'm also pretty sure it was a thing in Super Size Me (or maybe Food Inc.): McDonald's (and the like) gets better quality beef than the supermarket b/c they can afford the inspectors AND they can ensure that all burgers everywhere are cooked to the appropriate temperature -- of course, that only got that way for McDonald's and the like when they were given the incentive to care about making sure their customers did not get e. coli.

If, say, Chili's, decides that it wants to cater to a gluten-free crowd, they can change their procedures top down to make sure it happens at all of their restaurants in the same way.

The taco place on the corner? They can't make the same pivot (even if they had the resources to know what they needed to do).

Which is why the answer is regulation (or maybe law suits), not jailing servers.
posted by sparklemotion at 12:58 PM on August 5, 2016 [4 favorites]


If I had a severe allergy to salmon, I'd be carefully inspecting every food item I didn't personally prepare. The whole damned dish was salmon.
How can you tell the difference between salmon tartare and beef tartare by inspecting it? When I see them side by side, there is a slight color difference and the salmon is usually chopped less fine than the beef. But just sit one in front of me and I wouldn't be sure. Maybe smell? But there are onions and other foods there to affect the smell.
posted by soelo at 12:58 PM on August 5, 2016 [3 favorites]


It would be nice if there were some consequences to lying about food allergies. Pretending you have an allergy to take advantage of the extreme care required to accommodate a potentially deadly health issue because you don't care for a particular ingredient is totally selfish, unconscionable behavior. Right or wrong, it makes it harder for people with real allergies to be taken seriously.
posted by zixyer at 1:00 PM on August 5, 2016 [9 favorites]


Which is why the answer is regulation (or maybe law suits), not jailing servers.

Considering that TFA made it pretty clear that jail is not a likely outcome of this for anyone, maybe drop that as a rhetorical device?
posted by biogeo at 1:04 PM on August 5, 2016 [6 favorites]


There is literally no way for a person with food allergies to eat food that is 100% safe other than growing and preparing all of their own food, from scratch, themselves at all times.

Beyond the fact that growing and preparing their own food won't provide people with food allergies with meals that are 100% safe, it's also the case for people who don't have food allergies that eating in restaurants or consuming prepared food means your consumption is less than 100% safe.

The CDC estimates that 3,000 Americans annually die of food-borne illness. Given the report from sharp pointy objects that the CDC identified 11 deaths from food allergies in 2005, it seems as though you are much more likely to die from food you are not allergic to as you are from food you are allergic to.

However, I think it's far more rare in case of people who die from food illness not related to allergy to encounter suggestions that their own negligence is the most salient factor in their demise, especially when the death is traced to food that was prepared commercially.
posted by layceepee at 1:08 PM on August 5, 2016 [5 favorites]


The arrest and possible criminal penalties for the server is what makes this article noteworthy, though. Of course we're going to latch on to that. "Restaurant fucks up, gets sued" is pretty much dog-bites-man.
posted by prize bull octorok at 1:08 PM on August 5, 2016 [1 favorite]


BlueJae,

I admit, I wasn't thrilled with having to link a HuffPo article, but my Google-Fu is weak today and am only on break at work. I'd have more time when I get home, but MetaFilter conversations move so fast sometimes that hours later it would seem pointless to try to jump back in.

I also wish there was more hard data available though, since this is one of those issues where emotions run fast and high. It makes it hard to have an informed debate. Anyone with a food allergy appears (at least from the comments here) to think that even one death or one hospitalization is too many.

While I'd like to believe that as well, as long as we live in a market based economy in a nominally free country, this isn't ever going to happen. Diminishing returns on preventative measures, and the razor thin margins in the food industry dictate this, no matter how much everyone hates to admit that our society does indeed place a dollar value on a human life.

This is why I'm rooting so hard for driverless cars. The current system is broken enough that it needs to be completely changed. I think that to prevent those ER visits every three minutes, the system here needs to be changed as well. But to what exactly? What are the best changes to make?

So we need the data, so we can start proposing changes and then actually track them to see if they work.
posted by sharp pointy objects at 1:10 PM on August 5, 2016


Considering that TFA made it pretty clear that jail is not a likely outcome of this for anyone, maybe drop that as a rhetorical device?

The above-the-fold description on the FPP:
Quebec waiter may be the first in Canada to be charged with criminal negligence after a nearly fatal error with customer's meal.
The first comment:
Ignoring allergies as a food professional is absolutely negligence.

From TFA (thank you, BTW, for pulling the quote for me):
the circumstances meet the conditions for a criminal negligence charge.
Maybe "jail" is unlikely, but it's pithier than "convicted of a crime" and the rhetorical point remains the same whether it's jail, a fine, or community service.
posted by sparklemotion at 1:15 PM on August 5, 2016 [2 favorites]


Meanwhile, Epipen prices have skyrocketed.

Get the manufacturer's copay assistance card (my allergist's office hands them out to literally everyone) and your Epipen should end up being free or nearly free with most insurance plans.
posted by Jacqueline at 1:16 PM on August 5, 2016


sharp pointy objects, what I want is for my 12-year-old son with a life-threatening peanut allergy to not die. He's not a statistic to me. He's my son. I'll admit that makes it impossible for me to look at food allergies, as a public health problem, objectively. But trust this, at least: I want that data on what changes would best protect people with food allergies even more than you do.
posted by BlueJae at 1:17 PM on August 5, 2016 [6 favorites]


I am surprised that very few people have even mentioned that the server was drinking with other guests. I believe that speaks to how seriously he takes the job.

i guess I just have my doubts about the guy's account. The customer is (rightly) pissed the hell off, and I mean, when you go out to a restaurant, how closely are you watching the server after he takes your order?
posted by Hoopo at 1:20 PM on August 5, 2016 [1 favorite]


Jacqueline, the "$0 copay" coupon for the EpiPen is actually a $100 off coupon. As in it will not take more than $100 off of your portion of the payment. So if your insurance covers the EpiPen with a $50 copay, then it's free for you. But if you have high deductible health insurance or insurance that does not cover the EpiPen, you can use the coupon and still pay $500-$600 right now for a twin pack, unfortunately. Also, people with Medicaid, Medicare or Tricare (military) insurance cannot use the coupon.
posted by BlueJae at 1:20 PM on August 5, 2016 [3 favorites]


"i guess I just have my doubts about the guy's account. The customer is (rightly) pissed the hell off, and I mean, when you go out to a restaurant, how closely are you watching the server after he takes your order?"

Oh there's a lot that sounds odd anout the diner's story as related in the article, but this aspect isn't odd to me. Some people just notice things and a server drinking with guests would be odd in my book.
posted by Brandon Blatcher at 1:27 PM on August 5, 2016


i guess I just have my doubts about the guy's account. The customer is (rightly) pissed the hell off, and I mean, when you go out to a restaurant, how closely are you watching the server after he takes your order?

If I see my server with another group of people, drinking and carousing instead of checking on tables or doing other work, I certainly notice. I don't necessarily care and might not think about it at all afterward. If, five minutes later, I discover that the same server has given me the precise dish I told him I was allergic to, I might care a lot more and think about that somewhat more intently.

Also, I'm sorry, but what possible reason could you have for doubting the customer's account? There is not a single other account being advanced in this story. The waiter has lawyered up and isn't saying anything. The restaurant hasn't said anything. There is only one story out there right now from a person who was there. Is it just that he's complaining, so his account is automatically suspect because you don't like whiners? What is the competing story from someone else who was there that you believe instead?
posted by Errant at 1:31 PM on August 5, 2016 [7 favorites]


Why would he think to check it for salmon? He didn't order salmon.

Because salmon can kill him, how is that not enough reason.


I for one always make sure that when I get coffee from Starbucks every day I check to make sure they didn't accidentally give me ground-up black widow spiders, this seems perfectly reasonable
posted by beerperson at 1:33 PM on August 5, 2016 [16 favorites]


Poison would be one thing, but if milk could kill me I'd absolutely check every time to make sure my coffee wasn't a latte.

Hell, I check now to make sure they didn't give me the wrong order.
posted by Mitrovarr at 1:36 PM on August 5, 2016 [3 favorites]


i guess I just have my doubts about the guy's account. The customer is (rightly) pissed the hell off, and I mean, when you go out to a restaurant, how closely are you watching the server after he takes your order?

It's absolutely not common that a server would drink with guests, but it absolutely happens. I can easily see the guest wanting another drink and looking around for his waiter to order one and the guest taking particular note that the reason he isn't enjoying a drink is because his server is too busy enjoying his own.

(I see it a fair bit, but I live in a very strange town.)
posted by a non mouse, a cow herd at 1:38 PM on August 5, 2016 [2 favorites]


Food handlers in Quebec are required to complete a course and acquire certification indicating that they have been trained in food safety, contamination prevention, and allergy management, and have been so required since at least 2008.

Yup. I took this test complete with lengthy ass exam in Quebec in 2010 when I started my short-lived vegan bakery. Was it cheap? No, but it wasn't expensive either. They do train for this if you're a food handler. Most places require you to have a certificate if you are going to be anywhere near food as a pro. They make it very clear about cross-contamination as well as food allergies in the instructional videos and tests.
posted by Kitteh at 1:43 PM on August 5, 2016 [3 favorites]


Poison would be one thing

Yes, one thing which will kill you.
posted by beerperson at 1:43 PM on August 5, 2016


Also, I'm sorry, but what possible reason could you have for doubting the customer's account?

Because

There is not a single other account being advanced in this story

------

Is it just that he's complaining, so his account is automatically suspect because you don't like whiners?

what in the actual fuck? how in the fuck do you get to this "whiners" thing?

how about because I do not watch my waiter from the moment he leaves the table, to see if he is talking to the cook, and then to see if he is going to enjoy drinks with someone. how about because I know I don't always get all the details right myself. How about because i deal with liability claims for work and know for a fact I'm not the only one that gets details wrong a lot, on either side of the claim.

Well I'm outta here I guess. that's both reddit and Metafilter in one fuckin day
posted by Hoopo at 1:48 PM on August 5, 2016 [1 favorite]


Get the manufacturer's copay assistance card (my allergist's office hands them out to literally everyone) and your Epipen should end up being free or nearly free with most insurance plans.

That's great for Americans, but not relevant for Canadians (such as the victim in this case). Drugs are typically not included in our healthcare system, and many people don't have great drug insurance plans. My boyfriend has a government job with good benefits otherwise and his EpiPen for a peanut allergy is not covered by his plan at all. The pens are crazy expensive and you're supposed to replace them if they ever get too hot or cold (like say, forgetting them in a car in the summer or winter) and also expire very quickly. He isn't great at buying a new one as often as he's supposed to because it's just so expensive for something he has luckily never had to use since childhood.

Anyway, it's hard to tell whether the waiter was negligent without all the facts, which hopefully the court case will figure out. It's pretty safe to say that if there were clear allergy management protocols in place from the province and/or the restaurant and the waiter was properly trained but did not correctly follow the protocol (which we don't know for sure, but seems likely from the events described), he was indeed negligent.

Mistakes happen, but if you don't obey mandatory safety procedures and hurt someone as a result, you're at the very least partially responsible. Similarly, if the restaurant didn't have any defined protocols for dealing with allergies and/or didn't train the waiter properly (which we also don't know), the blame should fall on the people responsible for the improper training.
posted by randomnity at 1:51 PM on August 5, 2016 [2 favorites]


Food handlers in Quebec are required to complete a course and acquire certification indicating that they have been trained in food safety, contamination prevention, and allergy management, and have been so required since at least 2008.

What are they paid? I'm betting more than $2.30USD/hour.
posted by j_curiouser at 2:20 PM on August 5, 2016


Drugs are typically not included in our healthcare system, and many people don't have great drug insurance plans. My boyfriend has a government job with good benefits otherwise and his EpiPen for a peanut allergy is not covered by his plan at all.

Can I just say that that is some bullshit? Because that is some bullshit.
posted by Anticipation Of A New Lover's Arrival, The at 2:29 PM on August 5, 2016 [6 favorites]


Why do people in this thread keep criticizing the victim for not "checking" whether his food, in fact, contained salmon? What counts as checking? Does saying, "I am allergic to salmon, so please make sure that this dish I am ordering does not contain salmon," to the server, and getting a nod or a "Yes" or a "This will be fine," in response count as checking? Because that seems to be basically what happened here. The customer deliberately ordered something from the menu that did not contain his allergen, and also informed the server of his allergy-- presumably to CHECK that the restaurant could serve him that dish safely. That was checking his food.

Do you mean he should have checked twice, by asking the server twice? Once when he made the order and once again when the food arrived? Well, sure-- maybe he should have. That is what I do when I take my son with a food allergy out to eat at a restaurant. I tell the server about my son's allergy when we order. I check with the server again when the food arrives -- "Is this his order? Was it marked with his allergy?" But would that extra checking have helped in this case? I'm not sure. If the server brought the wrong dish and did not know that he had brought the wrong dish-- which I HOPE is the case, because the alternative would mean that he knowingly brought a customer a food he knew the customer was allergic to-- wouldn't the server have just said, "Yes, I'm sure your food is fine," and walked off?

Test-tasting the food won't work. One bite is enough to send some people straight into a severe reaction. Heck, one CRUMB is enough, in some cases. And as others have mentioned, if he avoids salmon religiously because of his allergy, would he even necessarily recognize the taste?

Smelling the food or having his companion taste the food might not work, either. It's not always possible to tell from the scent or the taste of a dish which allergens are in it. Plus, as others have noted, a person with a food allergy cannot reasonably travel with a personal food taster at all times.

It's not in the article, but, for all we know, this guy checked his food, in the ways that are actually reasonable and possible, four or five times. Maybe he checked the menu online for allergen information before he went to the restaurant. Maybe he read reviews online at a food allergy friendliness rating website, asked a friend who had eaten there before, or called ahead and asked about their allergen practices. I mean, that's the sort of checking I tend to do. But, none of that checking by the customer would help if the server failed to actually check that the food this customer was served was the food he had ordered.

From my perspective as someone who helps someone else manage food allergies daily, I personally think that the biggest mistake I think the customer made in this case, food-allergy-management-wise, was leaving his EpiPen in the car. But that has no bearing on the restaurant's mistake-- as many others have pointed out, it's not like an EpiPen interrogates your server for you, or works as a magic allergy eraser. And too, it's not like this guy with an allergy totally failed to purchase an EpiPen, or left his EpiPen at home. How much of a delay did leaving it in the car cause? 5 minutes? 10? Schools often lock children's EpiPens in a cabinet in a nurse's office 10 or 15 minutes' walk away from the allergic kid's classroom. (Which IMO shouldn't be happening-- but the practice is widespread.) Ideally people with food allergies should keep their epinephrine on their person at all times, but, in reality there are many times when that doesn't happen. EpiPens are a PITA to carry, honestly, (especially for boys and men in an era when it's unfashionable for male-presenting folk to carry purses). They are too big to fit in an ordinary pants pocket. They have to be kept in a certain temperature range, so people often keep them in insulated cases, which adds even more bulk (and hey, that's another reason not to leave it in the car, but I have no idea what the temp was that day). If he left his meds someplace where he could access them within 5 or 10 minutes, I think that's not ideal but is reasonable.
posted by BlueJae at 2:30 PM on August 5, 2016 [18 favorites]


From a Jury Instruction Template [pdf], here's what a judge might write about the "wanton and reckless disregard" that is required to constitute the offense:
Second – Did [the accused] show a wanton or reckless disregard for the lives or safety of others?

To prove that [the accused] showed a wanton or reckless disregard for the lives or safety of others, the Crown does not have to prove that [the accused] meant to kill or seriously harm [the complainant], or anybody else. Rather, the Crown must prove beyond a reasonable doubt:
1. that [the accused]’s conduct showed a marked and substantial departure from the conduct of a reasonable person in the circumstances;

and

2. that a reasonable person in the same circumstances would have foreseen that this conduct posed a risk of bodily harm. “Bodily harm” is any hurt or injury that interferes with a person’s health or comfort and is more than brief or minor.
In deciding what a reasonable person would have done or foreseen, you must not take into account [the accused]’s individual characteristics or experiences.

posted by Monday, stony Monday at 2:41 PM on August 5, 2016 [2 favorites]


EpiPens are a PITA to carry, honestly, (especially for boys and men in an era when it's unfashionable for male-presenting folk to carry purses).

Right?! I am a lady who carries the Epi-Pen 2-Pak. No dainty wristlet purse or tiny clutch for me. :P

posted by cadge at 2:44 PM on August 5, 2016 [4 favorites]


Why do people in this thread keep criticizing the victim for not "checking" whether his food, in fact, contained salmon?

Agreed, BlueJae. In addition, it is not always possible to confirm food served to you does not have an allergen. I don't recall if the guest said Salmon allergy specifically or fish. Regardless, some people are allergic to all fish. It is not out of the realm of possibility that a beef dish may be served, say, with a sauce that had fish stock in it. There would be no way to tell.

As to the Epi-pen, there have been a number of people who have said no one is perfect, in regards to the server. Yet, there have also been people (possibly not the same people) who have stated the guest shouldn't have forgotten his Epi-Pen... It's almost as if the server is allowed to make a mistake, but the guest was not.
posted by a non mouse, a cow herd at 2:47 PM on August 5, 2016 [6 favorites]


It's a shame that they stopped making those TwinJect ones. Those were a lot sleeker. It really is safer to carry two, not only for a backup but because it gives the paramedics half an hour to get to you instead of a mere fifteen minutes.

I once saw a video showing how to field-strip an EpiPen to get at the extra five or six doses that remain in the vial after the automatic injection has fired, but nobody should ever have to do that.
posted by Anticipation Of A New Lover's Arrival, The at 2:50 PM on August 5, 2016 [1 favorite]


Everybody is allowed to make mistakes. The question is whether reasonable precautions were taken. And while the guest probably "should have" had an EpiPen, I don't think at this point in the thread anybody is saying that the fact that he didn't lets the server off the hook for his potential negligence. Even if he had had one with him, it would still absolutely have been a life-threatening situation.
posted by Anticipation Of A New Lover's Arrival, The at 2:53 PM on August 5, 2016 [3 favorites]


"and yeah, it was dark, but salmon and beef don't even smell the same, and it's definitely more appropriate for the customer to have his nose within smelling distance than the waiter"

Not everyone has a great sense of smell (I for instance can barely detect the presence of fresh skunk roadkill), and I imagine even people with exemplary olfactory powers may not know what either salmon or beef tartar are supposed to smell like.
posted by Secret Sparrow at 2:53 PM on August 5, 2016 [2 favorites]


I don't think blame for a negligent crime, or for an inattentive diner has to be assigned to anyone here at all.

The diner didn't do anything wrong, the worst he can be blamed for is not being hyper-vigilant about his health, but then again, WE ALL MAKE MISTAKES, WE ALL FORGET STUFF SOMETIMES. I have a (non-life threatening) seafood allergy, but I don't check my food thoroughly before eating even though if it has some seafood in it I might literally spray stomach acid out of my anus the rest of the night. I'm not willing to live under threat, and I can totally understand how other people might feel that way, even if their lives might actually be at risk. It's fucking exhausting, even for me.

The server might have made a mistake, the cook might have made a mistake, the guy who put the plates together for a table might have made a mistake, hell, there are so many ways for someone to make a mistake in a restaurant kitchen I can't even name them all, and for that extraordinarily simple reason (amoung others) we don't normally charge individual people of crimes based on the fallible observations of a customer, because there is a whole hell of a lot that goes on in back that they do not see.

These are not mutually exclusive views to have. People make mistakes, their bosses are the people who are supposed to deal with these things barring obvious, incredible incompetence and negligence, which has absolutely not been shown here.

If I were in his place, I would expect to get fired because I hurt a customer and damaged my employers reputation, and there are pre-existing channels for dealing with those mistakes. I would never expect criminal charges, that is a level of punishment we do not bring down on a mechanic who forgets something and there is a car crash, or on a sports store employee who sells the wrong sized equipment that leads to injury, someone in produce at the grocery store who doesn't wash their hands between handling meat and produce, or even someone who sells a gun to an obviously disturbed and openly violent person.
posted by neonrev at 2:55 PM on August 5, 2016 [3 favorites]


(Background: I work in infosec, I'm gluten and dairy intolerant, and my spouse is allergic to dairy.)

When it comes to security, one focuses on preventing incidents, definitely. However, it's accepted that there is no such thing as being 100% perfectly secure, which is why a decent chunk of security is incident response and disaster recovery. So in this case, I'd accept that servers will in general do their best but will not be perfect, and consumers will be much the same, so what happens when (not if) something gets messed up?

Note: This is regardless of how. In an incident response plan, the focus is on mitigating the issue, not determining cause/blame/&c. (That comes later. :wry: ) In this situation, I'd say it'd be best to have an epi-pen on site, train the serverfolk in how to use them, and put up one of those laminated info sheets next to the box. Put a note on the bottom of the menus that there's an epi-pen on the premises in case of an incident. This minimizes damage done by the breach until a trained professional can come in to address the issue (here, an EMT).

I can't tell if this makes sense outside of my head. It's been a long month this week.
posted by XtinaS at 2:58 PM on August 5, 2016 [2 favorites]


I mean, the server could have been criminally negligent, or the server could've been totally human and made a mistake that, in this special case, had dire consequences. Or could've been actively malicious! An ideal incident response plan disregards the server's motivations entirely and focuses instead on "So Your Customer Has Been Poisoned: What The Hell Do You Do Now?". Once that's hammered down, it can be distributed as a general policy to restaurants nation-wide, and I think I've been at work too long. 👀
posted by XtinaS at 3:02 PM on August 5, 2016 [1 favorite]


One of the saddest things about the new Gilded Age is the way it normalizes compassionless, vicious treatment of the non-rich to the extent that even the non-rich themselves participate.
posted by No-sword at 3:05 PM on August 5, 2016 [14 favorites]


It is also absolutely possible for minor errors to pile up in ways that are bad in ways that the individual errors are not. There doesn't have to be a single smoking gun, or a single person who screwed up. Sometimes in this crazy world of ours, things don't work perfectly, and if more than one thing isn't working perfectly things mess up more than they would with one mistake on its own, and sometimes people get hurt because of that. All I ask is that people honestly consider their own errors at their own jobs, and the stupid reasons they make them, before criminalizing a guy who probably didn't have a lot of options for work in the first place for his.
posted by neonrev at 3:08 PM on August 5, 2016 [4 favorites]


Actually, given what happened, I'd bet that in fact the waiter *did* communicate with the kitchen. They said "beef tartar, no salmon", and the kitchen read that as 'salmon tartar'. It doesn't make any logical sense as to how the dish turned into salmon tartar otherwise; it's not a normal dish. So yeah, as someone said -- it's usually best not to take the word of the person suing without hearing from the other side.
posted by tavella at 3:09 PM on August 5, 2016 [7 favorites]


Actually, given what happened, I'd bet that in fact the waiter *did* communicate with the kitchen. They said "beef tartar, no salmon", and the kitchen read that as 'salmon tartar'. It doesn't make any logical sense as to how the dish turned into salmon tartar otherwise; it's not a normal dish. So yeah, as someone said -- it's usually best not to take the word of the person suing without hearing form the other side.

That is also what I think, because why the fuck else would anyone ever make salmon tartare instead of beef tartare? Either someone misspoke, or someone misheard, and neither of those are criminal offenses anywhere else.
posted by neonrev at 3:12 PM on August 5, 2016 [4 favorites]


Actually, misheard speech does seem the most likely explanation, or maybe a handwriting error (it could have been written down in the kitchen). Which kind of supports what I am saying about a low error rate requiring an entire workflow designed around that, not being something you can bring ad hoc into a chaotic atmosphere when you need it.
posted by Mitrovarr at 3:27 PM on August 5, 2016 [3 favorites]


Considering what tartar looks red and salmon looks red, it's not the oddest thing in the world that one was mistaken for the other.

Though why a kitchen would make salmon tartar is very good question, assuming that's what happened.
posted by Brandon Blatcher at 3:43 PM on August 5, 2016


I looked at the menu online. The steak tartare and the salmon tartare are listed right next to each other.
posted by prize bull octorok at 3:47 PM on August 5, 2016 [8 favorites]


a level of punishment we do not bring down on a mechanic who forgets something and there is a car crash

Huh? Car mechanics can absolutely be charged with criminal negligence if the oversight was serious enough. First page of Google results finds a mechanic who was actually accused of manslaughter.
posted by en forme de poire at 3:48 PM on August 5, 2016 [5 favorites]


Here's an example of someone being convicted for criminal negligence (for neglecting to maintain a backhoe properly, a failure of the braking system having caused a death): R. c. Scrocca, 2010 QCCQ 8218 (CanLII).

In this case the sentence was 2 years minus one day (meaning it would be administered by the province), to be served in the community.
posted by Monday, stony Monday at 3:50 PM on August 5, 2016 [1 favorite]




I think European restaurants are required to be able to answer questions about 14 common allergens.

Arguable, we should make them display the allergens they use in anything in some form on the door, so that if you've a deathly serious allergy to X then you can say "let's see if the place down the street does not use any X in anything", while if you've only a mild allergy then you can be for warned and chat with the waiter or whoever about it.
posted by jeffburdges at 3:57 PM on August 5, 2016


I agree FWIW that there was probably a structural reason for this failure; it shouldn't have been so easy for the waiter to make this mistake, if indeed it was his mistake. But just because he wasn't a highly paid professional doesn't mean he couldn't possibly bear any responsibility for what happened.
posted by en forme de poire at 3:58 PM on August 5, 2016 [4 favorites]


The restaurant where it happened has salmon tartare on the menu, prepared almost identically to the beef, which opens up lots of possibilities, including mishearing, miscommunicating, picking up the wrong plate, etc. (On preview: Oh, beaten to it. But I linked!)

There's no telling how it happened based just on the news coverage, but that's why there are trials for this sort of thing. I don't know what happened or how, but if--IF--it turns out the waiter was negligent, he should be held accountable somehow.

As someone without serious allergies, I'd have no problem paying a little extra at a restaurant to ensure that people with life threatening allergies were as safe as possible. What I would have a problem with is paying for people pretending to have allergies, which happens far too often.

I hereby decree that people with life threatening allergies be given some special identification that they can show at stores and restaurants that will trigger special procedures to ensure that mistakes are minimized. There really does need to be a way that people with serious health issues can distinguish themselves from those with personal dislikes and even milder sensitivities, and so far, the picky eaters aren't cooperating.
posted by ernielundquist at 4:00 PM on August 5, 2016 [6 favorites]


a server drinking with guests would be odd in my book.

It happened in Quebec, people in general are a bit more relaxed about things (usually in a good way).

Re the server's behaviour - true, most people don't usually pick up on what their servers are doing, unless they're unusually vigilant or e.g. the place is tiny. If this patron did notice the server's behaviour - in Quebec (i don't know, maybe after a glass or two of wine) - I am betting it was outside of the norm, and I am betting the server is a jackass sort of generally. Haven't worked in the food industry, have known a few people who did; my impression is that some (many) are conscientious professionals (and work in conditions that support professionalism) and that others are just not. Sounds like this server might be in the "not" category.
posted by cotton dress sock at 4:01 PM on August 5, 2016


and I am betting the server is a jackass sort of generally.

This is a really weird thread.
posted by prize bull octorok at 4:07 PM on August 5, 2016 [10 favorites]


I hereby decree that people with life threatening allergies be given some special identification that they can show at stores and restaurants that will trigger special procedures to ensure that mistakes are minimized.

Seriously? You want to force people who already have considerable extra hassle in their everyday lives to spend time and probably money (or if not, then taxpayer money) to fill out official forms, confirm their allergy somehow (more $$$ and time for a doctor visit?), and constantly remember to keep a special ID card on them at all times just in case some asshole thinks you're lying when you say "this will kill me, please do not hide it in my food"?

Sure, a few people lie about having allergies. Others have mild allergies that arguably don't need drastic measures to manage (but note: allergies are unpredictable and a mild reaction one time can kill you the next time). Many others are already hesitant to mention allergies and cause extra hassle for the restaurant...what happens when people forget their ID, or can't take time off work to get a doctor's note, or can't afford the bus fare to go get the ID card? I am absolutely certain that requiring some kind of ID card for allergy accommodation would kill far more people than it would save (not really sure how it would save anyone at all, actually).
posted by randomnity at 4:17 PM on August 5, 2016 [8 favorites]


This is a really weird thread.

You've never seen what I mean? Shooting the shit (or flirting) for tips is a thing - not anyone's fault, absolutely systemic issue, seems to me there ought to be a living wage set in that industry, some disagree - but it's a thing. Some people take that side of their job more seriously than the rest. For understandable reasons, but it's a disservice to those of their colleagues who work hard to say they couldn't do otherwise (all else being equal, no abusive boss, etc).
posted by cotton dress sock at 4:22 PM on August 5, 2016


Of course I wouldn't want people with allergies to be required to carry an identification or even to disclose their medical conditions. But unless and until everyone decides to radically shift our priorities and start paying food workers the kind of wages that would make it worthwhile to hire and retain highly trained employees and to purchase the necessary facilities, food service is going to be sloppy. People do lie about having food allergies pretty regularly, and predictably (not excusably, but predictably), underpaid and overworked restaurant employees get lazy and cynical about allergy claims.

Pretending to have allergies has even been thrown around as some kind of shitty 'life hack' for getting better service in restaurants. I've had people lie to me, a regular boring home cook making food for free, about allergies.

Preparing food for someone with a potentially fatal food allergy is very different from just leaving out the offending ingredients. From what I've heard, it involves extensive sterilization, separate utensils and cookware, and it takes up a lot of space in the kitchen. It's a pretty big deal, and it's not the sort of thing most restaurants could handle doing multiple times a night.

So yes, I really think that people with serious, life threatening allergies should have some way that they can reliably distinguish themselves from those guys. If they want to.
posted by ernielundquist at 4:46 PM on August 5, 2016 [2 favorites]


If the restaurant serves two dishes that look so similar, a simple solution would be to plate them differently so the servers can easily tell them apart.

I was served babaganoush in a very nice Greek restaurant once after we'd specifically told the server I was allergic to eggplant and to leave it off the appetizer plate. He said he would have the kitchen sub in more hummus. I could see why the error happened because 1) hummus and babaganoush look really similar, and 2)there were a huge amount of these appetizer plates going out and the servers probably just grabbed them and didn't pay attention to table tickets for them.

I only had a tiny taste because then my brain caught up and was like, "Does that *look* like hummus?" and the server was really apologetic and we got a big discount on the bill, but I have been even more careful since then about checking.
posted by Squeak Attack at 5:06 PM on August 5, 2016 [4 favorites]


I hereby decree that people with life threatening allergies be given some special identification that they can show at stores and restaurants that will trigger special procedures to ensure that mistakes are minimized.

As a person with several allergies (and friends with the same) I would love for this to be a thing. Just a card I can hand over to the kitchen with my food order. This is because you seriously cannot predict what they put into the food, you may not ask for "please do not include X" in a dish because you have never ever heard of X appearing in this dish ever, but this particular restaurant decides to do it...

Also it seems pretty silly to try and hold a person (likely) earning minimum wage directly accountable. Go after the restaurant management if you have to. Humans make mistakes: using the lowest rung employee as a scapegoat changes and accomplishes nothing if the system is broken. It seriously feels like punching downwards.

I've heard of restaurants flat out refusing to serve people with allergies because they cannot ensure there is no cross contamination - some allergies are severe enough that they require an entirely separate set of cooking utensils, pans and preparation area, which not all restaurants can provide, and there's no way to tell where on the continuum the claimed allergy is between "will cause instant death" to "I actually just don't like the taste of it very much".
posted by xdvesper at 5:06 PM on August 5, 2016 [5 favorites]


(Actually, my spouse has a card that says "I am allergic to star anise" in English, Chinese, and Vietnamese, because it's the easiest way to communicate an allergy with those most likely to cook with said.)
posted by XtinaS at 5:19 PM on August 5, 2016 [4 favorites]


You're in a nice restaurant with your partner. The lighting is dim and very romantic. You're having a great time. You order the beef tartare, making sure to tell the waiter that you're allergic to salmon and that it's important you don't eat salmon.

You receive this, but you're suppose to have this. Do you notice the difference? Remember: the lighting is dim.

It is literally the FOH's job to accurately relay information to the BOH. It is literally the BOH's job to accurately make the dish that is ordered.

I worked in a pizza place that had deliberate utensils and pans and an entire setup for gluten free pizzas and other things. A pizza place. A place filled with things that could kill someone. We never had an issue, and we'd be really fucked if somebody got sick, because it would be our fault.

Stop blaming the victim. The guy could have died.
posted by gucci mane at 5:24 PM on August 5, 2016 [23 favorites]


Arguable, we should make them display the allergens they use in anything in some form on the door, so that if you've a deathly serious allergy to X then you can say "let's see if the place down the street does not use any X in anything", while if you've only a mild allergy then you can be for warned and chat with the waiter or whoever about it.

Many restaurants in L.A. have a litany of detailed disclaimers on their menu. It includes everything from asterisks to indicate certain dishes can be prepared vegan/gluten-free/etc to warnings that dishes may be [ingredient]-free but [ingredient] is used in the kitchen, to warnings of which dishes contain certain allergens.

Pretending to have allergies has even been thrown around as some kind of shitty 'life hack' for getting better service in restaurants.

I don't have food allergies, but I do have a rare auto-immune disease that is triggered by certain common foods. They won't kill me but they could cause a reaction that makes it too painful to eat for a few days, so it's serious, but I always worry that I may be seen as a faker by waitstaff. I would never, ever pretend to have an allergy or inflate the danger to my overall health, but I wish "serious food issues that aren't allergies" was at least on people's radar. I don't blame them because it's so uncommon, but I wish the training included mention of the possibility.
posted by Room 641-A at 5:26 PM on August 5, 2016 [5 favorites]


I find it interesting that some see discussing ways to protect the rights and safety people with a life-altering and life-threatening disability as elitist punching down.

Guess what: there are minimum wage workers with life-threatening food allergies, too-- some of them even (*gasp*) work in the food service industry. They need food allergy safety reforms even more than middle or upper class people with food allergies, because they are far less likely to be able to afford special allergy-friendly food, EpiPens (which are ridiculously expensive) or emergency medical treatment (which can be even more so).
posted by BlueJae at 5:29 PM on August 5, 2016 [20 favorites]


As far as I can tell, there aren't many people here arguing against reforms. What we're arguing against is holding the lowest paid, least powerful members of the industry responsible for systemic failures when they're not superhumanly perfect at their jobs.

That part is what is the elitist "punching down." Not the idea that change is needed in itself.
posted by Kutsuwamushi at 6:21 PM on August 5, 2016 [23 favorites]


Hi! I'm a foodservice professional with over a decade of experience. I have worked as everything from a prep cook at a steak house to a New Orleans bartender to a Dave and Buster's Waitress to a fine dining chef to the General Manager of a high-volume upscale Diner. I hold a degree in Culinary Arts from Texas Culinary Academy and am a ServSafe Certified Food Safety Manager (as opposed to Food Handler) Most states require someone like me to be on staff everywhere that serves food to ensure customer safety. In addition to that, I take a particular interest in food allergies and sensitivities.

First of all, a situation like this is what keeps me up at night as a server, a prep coook, a line cook and a manager. If I were a restaurant owner it this case would make my therapist rich.

(most) Foodservice providers are not healthcare providers. They are not held to the same standards or education or sanitation.

When NASA decided to send astronauts to space, they had to be sure their food was as safe as humanly possible. No allergens of pathogens could enter the supply at any point, and the stakes were life and death. The system developed to address these concerns was called HACCP or "Hazard Analysis and Critical Control Points" and its scope spanned from seed germination to consumption. It worked.

Today, aspects of that system remain in place throughout our food system. The concept of "critical control points" is a great example. I'm not going to go into how this system applies to industrial production of food, but I am going to use the general concept to illustrate a point about restaurants.

I'll start with an awful example. I was employed at a leading museum cafe in the United States. A major "Name" chef was at the helm of the operation. My job was to sell and serve the food to patrons. I was responsible for knowing the sources of all ingredients, the ethnic origins of the food, and being able to knowledgeably answer questions about the content of the food, including questions that involved serious allergies or cross-contamination. Most of the food was prepared in a downstairs kitchen out of my sight, but I was given a lot of information about the food. Given my training and qualifications, plus my trust in the chef, I felt more than competent to address these tasks and was happy to take the gig as a way to make some extra money while I looked for chef jobs. We had one dish in particular that was sent to us with signage labeling it "gluten free." It was a venison sausage with a cherry reduction sauce topped with frazzled onions. I was told specifically to market the dish to guests who expressed concerns about gluten. From the start, I was not crazy about the fried onions due to cross contamination worries, so if a guest said they were celiac I recommended they leave off the onions "just in case." After the first few weeks the cherry reduction started coming up a different color and texture. I asked, and was reassured that it was the "right" recipe and to keep moving the product. I kept selling the dish to celiacs (sans onions, just in case) for weeks. Our clientele was all tourists so we basically never got feedback leet alone repeat customers. One day I was downstairs waiting for a tray of ceviche, and I saw the cook making the cherry sauce. instead of a reduction, he based it on a roux. (roux is based on flour, which is full of gluten.) Horrified, I asked what was up, only to be told that "chef" had told them weeks ago to skip the expensive reduction and crank out a cheaper roux-based sauce instead. Who would know?

I had been selling that sauce to people with celiac disease for weeks. I had been enthusiastically selling that dish to CHILDREN with celiac disease. I kept my tools clean and separate, it should be fine, right?! I poisoned god knows how many tourists with a smile. A good number of them were fearful but I encouraged them that they could trust us because we wanted to provide them great, gluten-free food.

When I finally confronted the chef and found out that not only were the onions NEVER gluten free, but that it was "okay" that the sauce was roux based because "the sausage itself had no gluten" I quickly found myself looking for work.


If you're still reading, you might have an idea about my opinions when it comes to feeding people. But much like NASA developed "Hazard Control Points" your average foodservice operation has those too. But unlike NASA, there's a whole lot more ambiguity, nuance and confusion involved.

First off, what is an allergy? My aunt will die quickly without immediate intervention if you cut swordfish with a knife, wash it haphazardly, cut a tomato with it and put that tomato in her salad. Someone with celiac disease will get the shits if I forget to wash my hands after I make pasta and before I chop the parsley that garnishes their steak. My tongue will swell if you make banana pudding in a kitchenaid bowl and don't wash it out very well before using it to blend my tomato soup. If my boyfriend orders his burger without onions, and you put onions on the burger and then remember it shouldn't have onions, take the onions off and then serve it, he will have a sneezing fit. If you put a summer fruit salad on the menu as a condiment for a lamb dish and it has currents in it but you didn't specifically mention currents, my friend will get a canker sore. These are all allergies.

In the case of a life-threatening allergy, like this gentleman's salmon allergy, everyone bears responsibility. The patron is responsible for telling the server the severity of his allergy, such as saying "if I have a full bite of salmon I will probably die" or "if your pans aren't cleaned properly between dishes I could go into shock" or "if I am served food that was stored in a less-than-airtight container near raw salmon, I might need emergency medical attention."

The server, upon getting such information should immediately take it to the head chef in charge. The chef should have the option of saying "I do not feel I can safely serve you any food from this restaurant. I am so sorry I can't accommodate you but I am not willing to risk your life or health to serve you a meal." That statement should be taken at face value. "How dare you not keep your peanuts so far away from your canola oil that you can't accommodate my severe sensitivity to cross-contamination?!" should not be a valid legal rebuttal.

The best case scenario is almost always the chef visiting the table for a casual conversation about the allergy, its severity, and how best to proceed. Nobody with an allergy wants to make a scene at a group dinner, right? But unless your server is a true rockstar, the chef is the one who needs to have the conversation, make the decision about whether or not it's even safe to serve the patron, and if so how to best proceed, and how to make things as seemless as possible.

Expecting servers to decide how severe or legitimate a dinners' professed allergy might be and letting them decide whether or not to let the kitchen know is the height of idiocy. If I could imagine something stupider regarding patrons' health, equipping 17 year old waitresses with EpiPens would be it.

Encouraging a language where people can express their food preferences, annoyances, irritations, discomforts, incapacitations, swellings, major medical crises or potential fatalities should be something that we, as foodservice professionals, pay some serious fucking attention to.


When it comes to the nasty thorny issue of legal liability, as it always does, the burden will always fall on the restaurant owner who was probably fast asleep at the time, secure in the knowledge that paying for the certification of someone like me as Food Safety Manager would keep him from ever having to worry about these things.
posted by Wroughtirony at 6:42 PM on August 5, 2016 [75 favorites]


This is a bit of a hot-button for me, but I will try to wade in.

1. I don't think that people should be prosecuted for making a mistake, even a very serious one. There are occasionally cases of really gross negligence, but in general, I don't think that criminal prosecution is the way to deal with this.

2. Having said that.... I really wish that servers would stop bringing up people who fake allergies. I am sorry that people do that, but I don't care. If someone tells you they have a serious food allergy, there is a chance that they are lying, but there is a chance that they are not. And you should be a decent human being and default to the assumption that they are not lying, because you should care about other people's lives. I am sorry that you're not making enough money, but that's not an excuse to kill people. I realize that people may do their best and still make mistakes, but that's different from just not giving a flying fuck because someone once said they had an allergy and then ordered that thing. And while I would like to think that servers aren't actually that callous, sometimes they talk as if they are.

3. People with serious allergies are constantly balancing risk vs. their desire to have a normal life. That is not an easy balance to strike, and it would be nice if other folks would not constantly second-guess their choices. With great effort, I manage to do that for someone I love very much, whom I am inclined to worry about quite a bit. If I can let that person make their own risk calculations, then I think you can figure out how to do that for total strangers. Because seriously: it's a lot easier to demand that someone live their entire life encased in bubble wrap than it is actually to do that. And it's not really a healthy way to live your life.
posted by ArbitraryAndCapricious at 6:49 PM on August 5, 2016 [17 favorites]


Ok, maybe I was a little rash (and stuck on remembered conversations about work drama, and this One Guy). Apologies. Was curious - reviews of the place are mixed, and describe (particularly) friendly, but sometimes slow or inefficient service (of good food on the pricey side). A 2014 Trip Advisor review (“Propriétaire idiot”) expresses annoyance at having been kicked out early (a bad day for the owner, who knows). From one Google review, likely planted by the owner of the time: "Passer la porte du Tapageur, c'est pénétrer dans un univers de légèreté et de chaleur humaine." I don't know what (if anything) this suggests about how the place is run. Maybe the owner values "human warmth" and aesthetics over tight operations, and trains staff up that way? It was a busy night and the server lost their bearings, maybe after a drink? It'll all come out at some point, I imagine.

(I don't know how one could systematize things to hospital levels at independently run restaurants unless the owner's seriously on board with it, or inspections are very consistently run, wonder about that.)
posted by cotton dress sock at 6:55 PM on August 5, 2016


Maybe "jail" is unlikely, but it's pithier than "convicted of a crime" and the rhetorical point remains the same whether it's jail, a fine, or community service.

Personally, I think these three things are very different from each other, and conflating them makes having the discussion much more difficult. Violating the speed limit is a crime, but framing a discussion about speeding by saying "I don't think someone should go to jail for going 5 over the speed limit" isn't really helpful.
posted by biogeo at 7:02 PM on August 5, 2016 [9 favorites]


Maybe "chaleur humaine" refers to fever brought on by anaphylactic shock.
posted by biogeo at 7:04 PM on August 5, 2016 [3 favorites]


I don't think that you need to systematize to hospital levels. For one thing, we're talking about the specific issue of food allergies instead of the hugely varied medical issues people may have.

A consistent, automatic protocol for dealing with serious allergies would go a long way. People have mentioned relatively low-cost protocols that would have prevented this accident in this thread.

Just having well-trained management and a protocol that management is automatically alerted if a patron mentions an allergy could go a long way.
posted by Kutsuwamushi at 7:19 PM on August 5, 2016 [3 favorites]


Just having well-trained management and a protocol that management is automatically alerted if a patron mentions an allergy could go a long way.

I have the impression that with restaurants, someone has money, probably someone else has an idea. There are some laws they try (with more or less energy and experience) to apply, and this works more or less effectively depending on all kinds of things. (Unless they're an instantiation of McDonald's or Chipotle or something.) They get caught out in inspections, or not, also depending on all kinds of things. I don't think mom and pop shops are legally required to hire someone like Wroughtirony. (Maybe they should be, is it likely, idk)
posted by cotton dress sock at 7:31 PM on August 5, 2016


I absolutely think the waiter belongs in jail. Waiting tables isn't rocket science, and the waiter should have been able to identify the plate in his hands as salmon instead of beef tartare in a heartbeat. Much less served it to the guy who will die if he eats salmon. I mean, Christ, that is a fucking memorable thing for a customer to say, and a person would have to be a stone idiot not to remember it. Remembering your customer's order is the most basic waiter skill imaginable. If you can't do it by memory, you write it down. People make mistakes, sure, but a mistake is when you bring somebody Diet Coke when they ordered regular Coke. It's not when you hand somebody a plate of light peach-colored fish instead of dark, maroon-colored raw beef, after they specifically told you that salmon would kill them. Salmon and beef look absolutely nothing alike. Sure, the customer might be dining in a dimly lit room and might not be able to tell from a glance, but I seriously doubt the KITCHEN is lit that way.

If you work in a gas station and sell cigarettes to a minor, you are personally liable for a fine up to $1K and possible jail time, depending on the state (in the US, at least). If you're a bartender and you serve a minor, or over-serve someone who's intoxicated, you can be liable for tens of thousands in fines and jail time as well, and that's just for violating the legal requirements--if the person goes on to crash their car or kill someone while drunk, you can be held liable for that too.

I think it's completely consistent and appropriate to hold a waiter liable for causing someone a life-threatening medical issue, because he served them a life-threatening allergen after being informed of same. There's really no justification for a waiter *ever* doing that. It's not expecting someone to be "perfect" or have "the training of a medical professional", it's expecting someone to have BASIC customer service skills. The ones where you listen to what the customer is telling you, and inform them truthfully on whether or not you can accommodate them to the degree they require. That is easily within the purview of a minimum wage employee. It's right up there with offering people paper or plastic, and telling them that the dishwasher detergent is in Aisle 7. "I am extremely allergic to salmon. Can you make sure my dish has no salmon in it?" Yes or no. If YES, then you make sure their dish has no fucking salmon in it! That's so easy! Five seconds to make a note and tell the chef! Then another 5 seconds to use your eyeballs to look at the plate and see that it is in fact beef. That is something waiters do 50 times in the course of a shift, to make sure they're serving the correct order to the right person. I am blown away by the people who think that's an unreasonably strict expectation of someone whose job expressly consists of taking orders and serving food.
posted by Autumnheart at 9:30 PM on August 5, 2016 [7 favorites]


Wow.
posted by lalex at 9:42 PM on August 5, 2016 [16 favorites]


If that's the case, it seems like several things are true: we aren't going to be able to prevent all serious allergic reactions even with the best intentions; there may be some technical fixes that don't require superhuman abilities from staff which would mitigate risk; and for some restaurants which serve lots of allergens, it might be a good idea to have an epi-pen on hand.

I really feel like in this type of case, you could get a lot of protection out of some very simple procedures. I've had to do complicated physical tasks that needed to be done without any mistakes, though fortunately rarely ones that risked harm to myself or someone else. Super simple things like:
  • redundant visual cues: flagging tables where there is someone with an allergy; writing down an order with an allergy advisory on a separate, brightly colored pad; putting out orders for diners with allergies in a specific area taped off with a bright color
  • checklists: for servers, did you confirm the allergy with the kitchen and then again with the patron? for kitchen staff, did you perform the following x y z steps while preparing this order?
...seem like they could have pretty easily prevented a case like this from happening, and they don't require any esoteric training in order to implement. Multiple redundant checks make it more likely you'll catch a mistake before it affects someone, and also take the blame off individual people when something does slip through the cracks. And if there were clear standards about the minimums restauranteurs need to implement as far as allergy safeguards go (at a minimum, for those restaurants claiming to be able to accommodate allergies at all), having a clear procedure would also protect the house and employees against accusations of negligence.
posted by en forme de poire at 9:46 PM on August 5, 2016 [3 favorites]


All these prescriptions sound exhausting to work with. If seems like it would be much easier to just teach all the waiters to respond to deathly food allergies with "I'm sorry but that ingredient it used in the kitchen, and we can guarantee that it will not be in your dish"
Then you don't have to worry about killing anyone or going to jail.

How many separate stations should you have for all the different kinds of allergies? Wouldn't you will be losing money trying to handle them all?
posted by Iax at 10:36 PM on August 5, 2016 [1 favorite]


Handling serious allergies is usually less about having separate stations for each allergy as it is about having more stringent standards around cross-contamination and cleaning when handling allergy dishes. You might start with fresh ingredients, rather than using mise en place that may have been cross-contaminated during earlier service. You might wear gloves. You might chop those ingredients using sanitized knives on sanitized cutting boards. You might cook them in a sanitized pan, rather than on the shared grill.

None of that is perfect -- if people have the kind of allergy where particles floating through the air can affect them, then the fact that you're even cooking their dishes in the same room as someone is dredging things in flour (gluten) or using a deep fryer (peanut oil) could be too much -- but it can really help keep the cross contamination down. It requires too much constant sanitizing to be efficient for every single dish a kitchen puts out, but it's the same basically repeatable process for any allergy, not a specific space in the kitchen / set of dishes for each different allergy.
posted by jacquilynne at 11:14 PM on August 5, 2016 [6 favorites]


All these prescriptions sound exhausting to work with.

I think you're comparing them to doing nothing, and not to the cost of trying to handle allergy requests in an ad hoc way. For example, BitterOldPunk's comment mentioned that he already took a lot of precautions on his own as a server, but the restaurant didn't have any established system, which sounds pretty stressful to me.

Also, there's still some up-front cost for sure, but extra steps often seem a lot more onerous than they really are in practice. I can also say from at least some personal experience (as a person with ADHD that has sometimes had to do very detail-oriented physical tasks for my job) that redundancy can actually end up saving you a lot of mental bandwidth, because you don't have to worry about whether you correctly did x or y, and if someone interrupts you with something you know exactly where you left off.

As far as different zones go, I was more talking about where servers pick up orders, not where the food is prepared (though that's obviously also important); in that case, one separate area is probably enough to do the job of signaling "hey this order is supposed to be for someone with an allergy." I know other MeFites have talked about how commercial kitchens manage allergy risks so I'll let more qualified people talk about specifics (as per jacquilynne on preview... also I thought fffm had a comment about this somewhere on the Blue but I can't find it now so maybe I'm misremembering?). I think fffm also previously mentioned that there's a high degree of variability in how people who claim to accommodate allergies actually do so: more explicit standards for that, maybe to different levels since of course nothing is risk free, would help people know what to expect.
posted by en forme de poire at 11:19 PM on August 5, 2016 [6 favorites]


But how do you decide if stuff floating in the air could be deadly for one person, while just not having the actual chunks of fish in the dish is good for others?
posted by Iax at 11:38 PM on August 5, 2016


Why would you not just ask the diner, like a lot of servers do now if you tell them you have an allergy?
posted by en forme de poire at 11:45 PM on August 5, 2016 [7 favorites]


I kinda think I can neatly divide this thread into people who have worked in food service and who haven't... (I have; this means my perspective is 180° from where it would otherwise be)
posted by iffthen at 11:56 PM on August 5, 2016


Elementary school cafeterias serving small children with life-threatening allergies, with a mix of school-prepared and home-brought food, manage to by and large prevent allergen exposure in their kindergardeners who a) cannot effectively advocate for themselves because they are five and b) are members of a class of people who lick each other on the regular.

Like I get that it's complicated to handle allergies in a commercial kitchen, and there's some added expense, but it's not SO complicated that cafeterias full of 500 students with food from a variety of sources serving $2.30 meals can't manage it. And, yes, while sometimes it entails an allergen-free school, often it does not -- it may be an allergen-free table, or careful control of cross-contamination, and since you can't perfectly control the behavior of children OR the outside food they bring from home, there's a lot of redundancies built into the system, and in a school of 500 you're talking about 5 or more students with DIFFERENT serious food allergies, so you're not just controlling the environment for a single allergen. Allergen safety is a hard problem, sure, and food safety issues in general are never going to be 100% perfect, sure, but it's not a magic impossible problem where we have to throw up our hands and give up. We already do a pretty good job in chaotic situations with the WORST POSSIBLE "customers" (i.e., five-year-olds who don't understand their own allergies, trade food, lick each other and/or the table, and aren't allowed to carry their own epi-pens), so clearly it can be done.
posted by Eyebrows McGee at 12:21 AM on August 6, 2016 [22 favorites]


Schools mostly do that by banning the allergen for everyone. And very few elementary schools actually cook food these days, as opposed to heating up food from offsite. They also have the same customers every day, and when those customers have medical issues, they have IEP prepared, detailing every aspect of it, which every staff member has access to. The staff can also order the customers around, and tell them what they are allowed to have, and where they can eat it, which may not be in the same room as other customers. Nor ts they have waiters.

In other words, a school is in no way a useful comparison.
posted by tavella at 12:39 AM on August 6, 2016 [8 favorites]


I missed Brandon Blatcher's link; reverting to the jackass theory. The patron tried to impress this information upon the waiter in clear terms three times - when he was seated, when he ordered, and once to request confirmation that the chef and kitchen had received the message, and the kid just - didn't act on any of it. In a fine dining restaurant that appears to prioritize the hospitality part of hospitality. Distracted, overwhelmed, interested in something else (maybe tips from a larger group), with poor support, probably... but if someone tells you something like "I have a severe allergy to fish" three times and you don't respond, unless you're incapacitated, you are negligent.
posted by cotton dress sock at 12:56 AM on August 6, 2016 [3 favorites]


Let's play this scenario out: The waiter hears the request that it's beef tartar, not salmon tartar, and confirms it twice with the kitchen. This is what people claim will result in a 0% error rate, after all.

Waiter -> Kitchen: "Make sure this is beef tartar, not salmon! Diner has a fatal allergy. Very important"
Kitchen: "Got it" (makes simple transposition error and produces salmon tartar, which is apparently very similar)
Kitchen: Order up! Pile of red animal flesh for ya
Waiter: "This isn't salmon, just double checking?"
Kitchen: "No, we heard you right"
Waiter thinks "Looks different from normal beef tartar, because it was made special to not use fish ingredients, cool"
Waiter -> Diner: "Here's your beef tartar"

Is this negligence? Is this distinguishably different from what happened? Who's to blame?
posted by 0xFCAF at 1:17 AM on August 6, 2016 [2 favorites]


This thread reminds me why we should just agree to pay people with memory issues like myself disability and not have them work.

People like me are expected to work- and usually at jobs like food service since no one else wants us- yet the truth is no one wants us to work- or why not put me straight in jail.

Some of us will DIE if we can't get money from a job.

Yet we can not be accurate with food orders.

Food service has some of the highest rates of employment of people with mental illness and substance abuse issues. If you want workers that don't make mistakes you'll probably be wanting to weed them out- and erase one of the last industries that takes such people.

Let's just be honest that the deaths of the poor who overwhelmingly are represented in these industries are already irrelevant for the rest of this conversation to make sense.

"If you know you can't be 100% accurate just don't work and stop eating"
posted by xarnop at 1:57 AM on August 6, 2016 [7 favorites]


Waiting tables isn't rocket science

Boy, I would like to see the large number of people in this thread who have suggested that waiting tables is an easy job and that anyone who screws it up must be a moron or an asshole assigned to actually work tables while living only on that pay for a few months.
posted by praemunire at 2:11 AM on August 6, 2016 [32 favorites]


I agree; it is absolutely possible to make an error, even an error that results in someone dying, without it being something that should result in criminal prosecution. On the other hand it's also completely possible to make an error that should result in criminal prosecution. We just don't have enough information to judge for ourselves which case this is.

But the idea that a server could never make a serious error without being a moron is ridiculous. Parents sometimes kill their children by forgetting and then accidentally baking them inside hot cars and these are people for whom their children are the most important thing in their lives. How much easier is it to mess up one order out of thousands that pass through your hands?

That the order hurt someone is not in and of itself evidence that gross negligence was involved.
posted by Justinian at 2:40 AM on August 6, 2016 [6 favorites]


As someone with a peanut allergy, I can attest that some restaurant staff are *extremely* casual about food allergies. I've been served peanut and peanut-oil contaminated foods, and the usual reaction on the part of staff is to defensively claim there's no peanuts. I don't necessarily think they're lying, more likely that they don't understand all the ingredients in their food, or where cross-contamination comes in.

Some folks on this thread are glib too. Not everybody eats every meal with a "partner" who can check, and even if they are eating with a partner, that person may not be able to detect the presence of a substance to which they have a sensitivity. If you have a severe food allergy, checking first with one careful bite can *still* make one quite ill. Why should we have to pay with illness for a food server or preparer's negligence?

It also isn't always in the first bite. I got extremely sick once from some caramel corn when I'd already eaten most of the package on previous days. There was evidently a piece of nut at the very bottom of the package.

I've also seen waiters in some supposedly nice restaurants take other concerns lightly, and serve sugar-laden beverages to diabetics, for example. I'm guessing this would stop if people faced real consequences for ignoring a customer's very clearly stated medical conditions.
posted by mysterious_stranger at 3:27 AM on August 6, 2016 [7 favorites]


Tavella, did you read the part where Eyebrows said that allergy management in schools usually doesn't entail banning the allergen from the school before you blithely said the opposite? She used to run a fairly large school district, so I'll defer to her experience here.

Christ, the amount of talking past each other, non-listening, and jumping to dramatic conclusions based on scanty or no evidence that's happening in this thread is insane. Did we all just check our brains at the door, or what?
posted by Anticipation Of A New Lover's Arrival, The at 3:45 AM on August 6, 2016 [10 favorites]


I'm interested in the case when the full story comes to light - arguing about whether he should go to jail or whatever right now seems fruitless and a whole bunch of Rashomon.
posted by parki at 4:33 AM on August 6, 2016 [1 favorite]


Yeah, but we've got people doing exactly that all over the place in here. Fuckin' glad that's not how actual justice works. Say what you will, it's a damn sight better that the court of public opinion. I did think that we had a culture of thoughtfulness here, where people wouldn't spout off about how someone should be put in jail based on what they heard in a news article about a case that hasn't even been charged yet, but I guess I expect too much from people.

Oh well.
posted by Anticipation Of A New Lover's Arrival, The at 4:59 AM on August 6, 2016 [4 favorites]


It seems the server made a horrible mistake. Going to the website of the restaurant, the two tartars seem very similar, and I can easily see how the mistake was made, I can also see why the guest would repeat the allergy concerns - because of the risk of cross contamination. This is probably also why they observed the waiter after giving their orders. I cannot see from the articles linked how this could be a criminal negligence on the side of the server. So there is probably more to the story.

But, as a person with a severe and rare allergy, I would never go to that restaurant. I don't want to blame the victim, I do want to share my restaurant-with-allergies advice:
- don't eat at smallish places with long menus (risk of cross contamination is too high)
- don't eat at places that have complex dishes for low prices (the complexity is often there to hide bad produce)
- if you need cheap food, go to a big chain, they can afford to handle the issues
- don't eat at places that serve a lot of the stuff you are allergic to (again, the risk of cross contamination)
- if you go to a place that seems safe, and the waiter doesn't seem to take you seriously, leave, or call the manager

Sometimes you have to go to places you don't trust with friends - and you need to deal with it. Then look for the food least likely to be cross contaminated, don't choose the item on the menu that is most likely to be dangerous for you even if that safe food is some bread and some lettuce.

These rules makes my life a little more complicated and irritating than some other peoples' lives. It also lessens my risk of dying. I've argued a lot with friends both allergic and non-allergic who claim it is a basic human right to be able to enter any restaurant and proclaim a four-page list of stuff you can't eat and not get that. The thing is: I agree - it is a right. But I'm not risking my life to prove a point.
posted by mumimor at 5:00 AM on August 6, 2016 [4 favorites]


This seems to me like the kind of issue that should be handled by the market. All over Asia, there are street food stalls where people can eat for very little. I don't know whether people are dropping dead at these foodstalls -- I'd assume that people with serious allergies know that they aren't safe and so don't eat at them. Would you really want to ban such places? Deprive the folks who run them from making a living, and the people who eat at them from the cheap, nutritious and tasty food that they serve? Surely not?

On the other hand, if you want clinical levels of governance in respect of your food prep and service, because it's a matter of life or death to you, well hey, that should be available too -- it's just more costly than the other stuff. No employing people minimum wage folk with bad memories, your servers could all be PhD level masters of the menu.

You'd just have to pay the appropriate price.
posted by PeterMcDermott at 6:08 AM on August 6, 2016


If it turns out this 22 year old waiter, working in a (Canadian, nb) university town recently rated tops in the country for life satisfaction, has some kind of verified memory or mental health issue or was on the tail end of a triple shift, I would be very sorry. One can always be wrong about these things, of course, and of course there isn't much information apart from what's been reported. (I would also eat my socks. Yes, we are just speculating here. Not actually on a jury. My money's on "didn't give a shit".)

There is no information to suggest the waiter was anywhere close to dying, at this point, unlike the guy who was in a coma for two days and had a heart attack.
posted by cotton dress sock at 6:39 AM on August 6, 2016 [6 favorites]


PeterMcDermott: The "you clearly want servers to become medical professionals" tack has already been taken, you're a little late to the party. I'm enjoying the originality of "you want to ban food carts in Asia, you people and your allergies", though; I've never heard that one before.
posted by XtinaS at 6:43 AM on August 6, 2016 [12 favorites]


What about the right to have a job if you aren't perfect? Is that a right? And isn't it a more urgent right for a larger number of people to be able to work somewhere even if your brain isn't geared for 100% accuracy- or at least some sort of right to just pay a universal living wage to people who don't necessarily have a disability but are considered underqualified for 100 accuracy to hold a job?

I mean where do we want them to work? Food service is THE industry we tend to expect people who aren't that good at school, are forgetful or absentmind but not necessarily clinically so (at least at current standards).

Is the right to earn income to LIVE not somewhat more pressing than to feel like you can eat out somewhere?

We somehow want to eradicate all inferior performing people from the workforce and simultaneously want our dirty and high stress jobs to be performed by some underpaid class of perfect people who never make errors but for some reason choose food service with little pay as the chosen place to apply their miraculous perfection. I don't get it.
posted by xarnop at 6:48 AM on August 6, 2016 [3 favorites]


What about the right to have a job if you aren't perfect? Is that a right?
I mean, that's not a rhetorical question? Most developed countries have laws about that. I don't know what they are in Canada. In the US, people with disabilities have a right to any job that they can do with reasonable accommodations. For a waiter with a memory disorder, a reasonable accommodation might be that they were permitted to write down orders, rather than remembering them. But delivering orders accurately is one of the key functions of a server, and if you can't do that with reasonable accommodations, then you aren't legally entitled to that job, at least in the US. I don't think that's what we're talking about here, though, because nobody is making a case that this guy has a disability that makes him unable to do this job without accommodation.
posted by ArbitraryAndCapricious at 6:57 AM on August 6, 2016 [4 favorites]


Right but I was responding to people who are making the claim that it is a right to be entitled to have someone else make meals for you.

Which strikes me as much less urgent for survival than having a job at all. It's not a LEGAL right to have someone be required to make meals for you either, but if we're going to talk about the pain of not being prepared meals vs the pain of not being able to have a any income and this starving or being homeless are of different weights. Food service is a sanctuary profession for mentally ill, addicted, and the job itself comes with high rates of sexual harassment and stress with little pay.

I'm not sure how many in this thread know what it's like to not be qualified to do anything but service industry work and how the expectations of perfections levied at people who often have PTSD, impaired cognition, are enduring poor living conditions that impair cognition- and yes perfection with every order IS too much to ask for the people more likely to be represented by food service workers.
posted by xarnop at 7:16 AM on August 6, 2016 [1 favorite]


We somehow want to eradicate all inferior performing people from the workforce and simultaneously want our dirty and high stress jobs to be performed by some underpaid class of perfect people who never make errors but for some reason choose food service with little pay as the chosen place to apply their miraculous perfection. I don't get it.

Xarnop has a really good point - they mention upthread that food service has a higher-than-normal percentage of staff with mental and emotional issues and a higher than normal percentage of staff with substance problems. People end up in food service because hiring standards aren't very high and there's unofficial accommodation of those concerns - meaning, few rules or rules not enforced, I take it.

What is depressing to me about the US is that there's unlikely to be real accommodation, which would have to include meaningful support, a decent wage and access to medical care. Even in a best-case scenario, there will be customer-oriented accommodation, meaning more rules and double-checks for staff and maybe more hoops to jump through to get a job in the first place. Which up to a point is fine, right? Avoidable hospital visits should be avoided!

It seems like there's two problems that intertwine - one is the problem of bad restaurant practices that mean that allergy and safety concerns are handled randomly and sometimes it's okay and sometimes it's a disaster; and the other is the problem of a cheap labor society.

By rights, if we say "restaurant workers should be more accurate and more careful and deal with more complex systems" that ought to be a pay bump, right? We're not talking about people being paid like surgeons, just being paid somewhat more in the recognition that more skill is involved. But that's not going to happen because we all want cheap food, and our entire system is built on cheap food and the desperate class that Xarnop mentions doing cheap labor. So the only way to get high skill work out of low-paid/desperate people is coercion, usually by making sure that they're starving and desperate enough not to object and also prevented from organizing. That's what is concerning to me, and it's what xarnop is pointing to.

Basically, there's a pretty clear utopian-capitalism scenario here - restaurants have clear protocols in place to handle allergies and safety concerns, and those protocols are executed by fairly compensated staff who have the support they need to do the job. Staff have access to medical care and decent housing so that, even if they are not making a LOT of money, they do not face the added stressors of precarity - and that benefits the customer, since someone who is dead tired and working sixty hours a week on their feet (and/or taking stimulants in the kitchen) is probably not the best person to be separating your salmon and your steak.

To extrapolate from what xarnop is saying, both pieces are necessary to get what everyone wants.

(I am thinking about it now and while some of my friends in food service are just complete professionals who are really hard-core about it, some of them are also people who do struggle to find work and do food service because it's all they can get. Of those people, two should really be on disability, one while she deals with a resolvable medical issue and one probably permanently. But they can't get disability because America-fuck-yeah, so they wait tables.)
posted by Frowner at 7:16 AM on August 6, 2016 [7 favorites]


1. There is no evidence that the waiter had any mental illness.

2. There is no evidence that the waiter was underpaid (servers in Quebec make 9.20 an hour before tips, which is more than the non-server minimum wage in most areas of the US...with tips they make considerably more than regular minimum, which is 10.55 in Quebec) or overworked. Especially in a relatively fancy restaurant like a tapas place.

3. Those server jobs are highly desired, not last-resort jobs mentally ill people get because they can't get a job somewhere else. It's not like working at McDonald's. I would never be able to get a job as a server because I'm very absent-minded and that's ok. Not every job needs to accommodate every personality flaw.

4. Restaurants are perfectly entitled to say that they can't accommodate a serious allergy. I have personally experienced this many times (for my boyfriend's peanut allergy) and it's not a big deal. They will typically describe the level of safety they can provide, and we will decide if it's an acceptable risk to eat there.

5. This is a Canadian event and US wages/mistreatment of workers/disability accommodation/etc are not relevant here. Can we for once discuss something that occurs out of the US without forcing it into a US context? Please?
posted by randomnity at 7:28 AM on August 6, 2016 [31 favorites]


If you want waitstaff to never mess up an order, ever, how would you accomplish that?

Firstly, force them to write orders down.
posted by ymgve at 7:28 AM on August 6, 2016 [3 favorites]


I mean, there is clearly one person in this story who has a disability and has a right to use public accommodations. There is another person whom nobody has claimed has a disability. It is so telling, and really kind of gross, that some people think that the possibility that the second person has a disability trumps the right to public accommodation of the first person, who has a documented disability.
posted by ArbitraryAndCapricious at 7:35 AM on August 6, 2016 [14 favorites]


I don't know about this place, betting they just hire university kids, but it normally takes two years of experience to get a *serving* job at a fine dining establishment. Some places won't hire you with less than five. Typical income for a server at a place like that is 50k. It's a professional job. Substance abuse does happen, some people like the work for the partying. Casual restaurants are another story.
posted by cotton dress sock at 7:35 AM on August 6, 2016


Boy, I would like to see the large number of people in this thread who have suggested that waiting tables is an easy job and that anyone who screws it up must be a moron or an asshole assigned to actually work tables...

In the context of this thread, I don't think I would. That level of overconfidence is dangerous. They'd be more likely to make an error than someone who is aware of how easy it is to do so.
posted by Kutsuwamushi at 7:52 AM on August 6, 2016 [4 favorites]



Tavella, did you read the part where Eyebrows said that allergy management in schools usually doesn't entail banning the allergen from the school before you blithely said the opposite?


I'm going from the current personal experience, where a five year old has a list of things they cannot bring, and if they do then the only place they can eat lunch is the principal's office. So I think I'll trust my personal experience over McGee's.
posted by tavella at 9:14 AM on August 6, 2016 [2 favorites]


I oversaw 28 schools for five years, my experience is fairly broad, as is my knowledge of allergy rules for US schools. If your school is unreasonably restrictive I recommend you look up current best practices for allergens in schools from the AAP and your state board of Ed. OTOH, non-allergic students shouldn't be bringing in allergens they've been warned not to; eating in the principal's office is wholly reasonable in that case and I can't imagine a restaurant that advertises itself as peanut free letting someone bring in outside food with peanuts.
posted by Eyebrows McGee at 9:20 AM on August 6, 2016 [7 favorites]


Did I say it was not reasonable _for a school_? And given that this restaurant wasn't advertising itself as 'salmon-free', I'm not sure what relevance your last sentence has, except in making my point: schools are a terrible comparison. An institution where the 'customers' can be ordered around (or physically dragged if necessary) as the staff wishes, and where anyone with lethal allergy has an IEP explaining every detail, which all staff have access to, and where the same 'customers' interact with the same staff every day has nearly zero overlap with a modern restaurant.

I simply cannot imagine, if I had a lethal allergy, eating at any sort of fine dining restaurant. A fast food chain restaurant would actually be far safer, since they will be preparing the same food, from the same suppliers, in the exact same method from the same manual, every day. Any other responsible restaurant would simply post on the menu that their facility uses nuts/seafood and cannot serve customers with dangerous allergies. The only way I can see it as being safe is if they kept some sealed alternate meals that had been prepared offsite in a clean facility by people trained in the necessary skills, and don't have the kind of staff turnover, hyperstressed speed, and often language barriers of a typical 'fine dining' restaurant. And since they would go unused most of the time, that's an extra expense they may not be able to afford.

Some of the suggestions upthread are good, but for example assigning a manager to walk the meal through the kitchen only works if you have enough extra staff that the manager isn't needed up front seating people or taking reservations. And most restaurants don't run with that kind of excess; you'll get that at restaurants in places like Disney, or very high end restaurants, and you'll also pay the extra expense. But it's not the standard model.

Mostly I feel sorry for waiters and cooks in a restaurant where the management hasn't been responsible enough to put the necessary disclaimer up front and back the waiters when they explain they can't do that.
posted by tavella at 11:38 AM on August 6, 2016 [3 favorites]


Whats with the fine dining here? When I look at their website, I see a pub with a crazy-long pub-menu.

I have eaten a couple of times or more at fancy restaurants, and every single time, they have asked me about allergies before I even thought of it myself. And I'm a person with allergies. They really, really don't want someone to get ill in their place, because it would ruin their business.
I normally don't eat at Asian restaurants, because they are the most likely places for me to get food I can't eat. But I was gifted a dinner at a really fancy place and went there with family. When we came in, we were served non-alcoholic drinks at the bar, and during that time a server came and went through all of our food and drink worries. They didn't care wether our issues were real or pretended, (my sister is a caricature of the pretended allergy set), they just talked us through everything and made notes. It was a truly amazing experience.
posted by mumimor at 11:55 AM on August 6, 2016


Yeah, La Tapageur is not fine dining! For that, you want Restaurant Auguste around the corner.
posted by Kitteh at 12:42 PM on August 6, 2016 [2 favorites]


Again I see people using the strawman argument that since perfection in this area is impossible, nobody should expect restaurants to try.

Nobody is asking for perfection. They're asking for due diligence. What's that you say? There are no official standards for due diligence in handling food allergies in a restaurant setting? Individual restaurants are unlikely to adopt higher standards voluntarily because it would increase costs and make them less competitive?

Why, that's what legislation is for! This shit should be regulated. There should be a minimum standard that restaurants need to adhere to or else be held liable if a patron who has disclosed a food allergy is served a food that causes them to have a dangerous reaction.

In fact, as industry folks have repeatedly pointed out above, some regulations exist already. Staff need to have food handling certification, and managers need a more rigorous version of that certification (at least in the US, I don't know if anyone has dropped in to tell us how that's done in Canada). There are health codes that the restaurants themselves need to abide by or risk fines and shutdowns. So there's a precedent for regulating the safe handling of food in restaurants, which could be extended to cover food-allergy-specific issues more effectively.

Nobody says that would make eating out 100% safe for those with food allergies. But it would make it safer, and make it easier to determine, in cases where things do go wrong, whether the restaurant should be held liable. It would give diners a better idea of what they could expect, so that they could make a more accurate risk assessment. It would do all kinds of positive things, while still falling short of the impossible strawman goal of perfection.

Also, regulation would keep the playing field level for restauranteurs. Everybody's prices would go up a little to cover the extra expense and hassle, and nobody would be able to blame any individual restaurant for the price hike. Nobody would have to worry that they were going to get out-competed for trying to do the right thing. If anything, restaurants which had already voluntarily implemented policies similar to the hypothetical regulations—and there are some that do go the extra mile, as people have pointed out—would be rewarded for being forward-thinking because they would be ahead of the curve and have to make fewer additional changes.

Seriously, why are people letting the perfect be the enemy of the good here? Why are people insisting over and over again that because restaurants can never be perfect about avoiding things like order mixups and cross-contamination, there's no point in even trying to implement basic, commonsense adjustments to the way business is done? I'm trying to assume good faith here, but I've yet to see a coherent response mounted to the argument that it would be a good thing if we could implement some new regulations that establish a higher standard of due diligence for managing food allergies in restaurants.
posted by Anticipation Of A New Lover's Arrival, The at 1:10 PM on August 6, 2016 [11 favorites]


Food allergies are common and becoming even more so. It's extremely unrealistic to recommend that restaurants refuse to serve anyone who has a food allergy.

It's also unrealistic to assume people with allergies can just avoid ever having anyone else prepare their food. Very few people live the kind of lives where they can prepare 100% of their own food from scratch from ingredients they grew themselves. We live in society with other human beings. One of the ways we became dominant as a species is by division of labor. A functioning society requires standards for the performing of that labor.

It's also very hypocritical to profess to care soooo much about some hypothetical food service worker who can't remember the difference between salmon and steak, and not at all about another human being who occasionally ventures from home for enough hours as to require a meal out. Are you really suggesting that people with allergies never travel? Always be required to carry their own personal cooler with safe foods in it?
posted by mysterious_stranger at 3:55 PM on August 6, 2016 [2 favorites]


I don't know if you're talking to me there at the end of your comment there mysterious_stranger, but for the record I both think the waiter may have made an honest error or at least not been criminally negligent (all we have to go on are the allegations of his accuser as reported in one news article, which to me isn't much) and also that the customer had every right to go to the restaurant and expect his health needs to be respected and accommodated. I also don't think that the customer can be blamed for leaving his epi-pen in the car; people forget things all the time, even important things. Basically my position, for what it's worth, is that we don't really know much about this case and it should be on the courts to sort it out, if indeed charges are brought.
posted by Anticipation Of A New Lover's Arrival, The at 4:20 PM on August 6, 2016 [3 favorites]


I think it is morbidly amusing that people are complaining about the fact that someone that likely has less paid training hours than the vast majority of professions out there, and may well be paid less than them as well, isn't a good steward of their, and I mean this literally, lives while also complaining that epi-pen prices are just too high.

Surprising though it may not be, I've spoken to this subject (food allergies from a server-that-cares point of view) here before so I'll skip saying more on that in particular.

I'm sorry for you all that have food allergies because it's not as safe or as easy as it should be for you to get a burger. Really I am. I just know that, based upon my years serving food and working alongside others doing the same, if I were in your shoes, as some of you have said you are already, I'd be completely and totally terrified everytime I ate out because, here in the US at least, it's the fucking wild west because of the way we as a society have structured our expectations concerning workers, scheduling, compensation, and proper and just regulation of the same.
posted by RolandOfEld at 5:07 PM on August 6, 2016 [10 favorites]


Seriously, why are people letting the perfect be the enemy of the good here? Why are people insisting over and over again that because restaurants can never be perfect about avoiding things like order mixups and cross-contamination, there's no point in even trying to implement basic, commonsense adjustments to the way business is done?

So many people are insisting that this kind of error is easily preventable and occurs primarily in the context of the server being a jerk or an idiot or what-have-you, to the point that a server must have been guilty of gross negligence and thus a form of homicide just because he got the order wrong. I don't actually see many people in this thread insisting that the restaurant or the server could not possibly have been negligent (I for one said the opposite in my first comment) or, really, any arguing that that some higher form of standards for allergy handling would be bad or completely futile. Rather, people are saying that these errors are going to happen, regardless of the good will of the people involved or the standards of the restaurant, and it would not be fair to hold the average server criminally responsible for executing the order perfectly in a life-or-death situation. (And because it is a life-and-death situation, yes, there you're asking for perfection.)

I am really sympathetic to people with food allergies, but "do this right or I die" is an awful lot to ask of a low-paid (sorry, sub-$11/hr. is not rolling in it) service industry worker in a chaotic system. Short of deliberate indifference (and, yes, I totally believe that there are asshole servers out there who basically ignore allergy instructions, and if one of them did that and someone died as a result, I would have no problem with criminal charges), trying to solve the systemic problem here by slapping criminal sanctions on the most junior person in the chain is both inequitable and unlikely to work.
posted by praemunire at 5:09 PM on August 6, 2016 [9 favorites]


And lest someone think I'm totally on the servers side and victim blaming folks with allergies in this case due to a bit if perceptible bias in my linked dcomment above, please don't miss my other one just below it in that same askme.
posted by RolandOfEld at 5:11 PM on August 6, 2016


Here's what I need to understand: how, in the Canadian system, do you get from someone filing a complaint to the police considering criminal charges? Is it literally that the complainant filed a criminal negligence complaint, deciding for himself what charges might apply? Or is it that the police reviewed the complaint and decided it might be a criminal matter?

Or did the complainant find a lawyer to sue the restaurant and the lawyer recommended it be treated as a criminal matter?
posted by tel3path at 6:00 PM on August 6, 2016


praemunire, I guess I just feel that it's unrealistic to expect perfection in anything, ever, including in life-or-death situations. The universe just isn't amenable to that level of control, or something. Humans never do anything absolutely perfectly all the time. To deny that is to invite disappointment, and to be angry about it is to be angry at God, or Fate, or physics or what have you. It honestly never occurred to me that people would redirect that existential angst toward a class of fellow humans that is generally exploited and overtaxed to begin with, but now that you point it out I guess that's exactly what happened. Thanks for helping draw that connection for me, seriously.
posted by Anticipation Of A New Lover's Arrival, The at 6:00 PM on August 6, 2016 [2 favorites]


I am really sympathetic to people with food allergies, but "do this right or I die" is an awful lot to ask of a low-paid (sorry, sub-$11/hr. is not rolling in it) service industry worker in a chaotic system.

If I take a cab (or God forbid an Uber) somewhere, I am trusting them not to mess up and cause an accident that could kill me. Cab and Uber drivers are criminally underpaid, and accidents do sometimes happen (yes, they can be caused by other drivers, but so too could you have an error in the kitchen). That doesn't mean they can't ever be liable, even if it is an understandable mistake.

It's problematic to say, on the one hand, that it's too much to expect a server to have power of life and death, and to say on the other hand that the allergy sufferer should just never go out. Statements about "if I were in this situation I would never do ____" never carry much weight with me because all they're saying is that you can't relate to that actual experience, and you're arguing against what you imagine the true risk analysis to be. Other people have pointed out that if you have a serious allergy, lots and lots of people are in a position to make you sick, even if you never leave home. It's up to the people packing your food, the people storing it, and the other people in your home to ensure that your food isn't contaminated. The risk analysis is therefore not so black and white as to assume that going out is this huge risk you'd otherwise avoid.

What most people here have been saying is that liability on the part of anyone in the restaurant business should be a sign that we need more regulation and protocol to ease that burden and keep any one person from being the single point on which all food safety rests. It's not about punishing a single server, but about finding a way to best accommodate the public. I think of it as another level of food safety. Yes, it depends on the server acknowledging the customer's diet restrictions, but the idea of a protocol is to prevent it from being the kind of burden it might be now.
posted by teponaztli at 6:39 PM on August 6, 2016 [10 favorites]


Also, I do understand what people are saying about this being an added burden on service staff. I do get that. It's just when that's followed up with "people with allergies need to stay home to be safe" or "if I had an allergy I'd never go out" that it leaves a bad taste in my mouth. Aside from the casual attitude towards asking people to never leave their homes, it's also saying something about the nature of risk in this case that I think is incorrect, and I think that colors the impression of how much of a burden this becomes for the waiter. All I'm trying to say is that there may be less of a clear line between being and not being fully responsible for someone living and dying than it may seem.
posted by teponaztli at 6:53 PM on August 6, 2016 [5 favorites]


@telpath - the police investigate and the Crown decides whether or not to prosecute. It seems police here did interview the waiter and witnesses (who, it seems at least possible, may have confirmed that the waiter had been, according to Canuel, doing shooters with the patrons at the next table). Canuel is also filing a civil suit.
posted by cotton dress sock at 7:26 PM on August 6, 2016 [2 favorites]


The attitude that people who have allergies should just make sure to avoid their allergens is, frankly, untenable, unless you literally want people living in bubbles. There are food allergies that can cause serious or life-threatening reactions from incidental contact: not just eating the item, but eating something that touched the same knife as the offending item. For others, sitting a few feet away from the allergen will cause a reaction. I don't know what the answer is in terms of restaurants. I really don't. But people who want to put 100% of the onus on the allergy sufferer are basically saying that some people should be hermetically sealed inside their homes, because the allergens are sometimes not avoidable unless your fellow human beings are willing to cooperate.

I am grateful not to have food allergies. But I have just about every environmental allergy there is, including a pretty severe and health-threatening animal dander allergy. (My own sister didn't believe me for a number of years, because the allergy got worse as I got older, and we had a dog when I was a kid, before I became unable to be in the same room with a dog. She believes me now after having seen me have an attack.) When I fly, I call the airline ahead of time to ask what I need to do in order to ensure that I'm not seated within 10 rows of a pet or service animal (because that's what I've discovered through trial and error and a lot of getting sick over the years is the safe distance for me on a plane). If the airline doesn't have a protocol to flag animals on the flight, I don't fly that airline because it's not safe for me. I also call again the day before my flight to confirm, because I know that people switch seats. Even still, at least twice in the last year, I've gotten onto the plane to find an animal within a row or two of me, and then I'm the asshole who is demanding to be moved away from the cute puppy. I have stored in my cell phone a photo of my face that I took during an allergic reaction. (I look like Will Smith in Hitch, basically.) Whenever someone gives me crap about asking to have my seat moved, I show them the picture, and I ask them what their protocol is for when this happens on their plane. That's often the only thing that stops the eye rolling and the assumptions that I'm just being prissy.

I'm so grateful that, for the most part, this is only an issue in limited situations: on public transportation and other enclosed spaces where people routinely bring animals. But it also means I have a lot of friends whose homes I have never seen. I have one otherwise-awesome cat lady friend who isn't very good at laundry, and I make a lot of excuses for why she can't come visit my house because I get hives when I sit on my couch after she has sat on it and left a bunch of cat fur behind, and I don't want to be rude. So no, I can't come to your party if you promise to keep your dog in the yard while I'm over, because the dander is everywhere, and because invariably once a few people get drunk, they're going to want to play with the dog and let it into the party, and I can't stop that from happening, so it's not safe for me to go. And yes, I'm the terrible person responsible for asking HR to enforce the policy that you can't bring your dog to visit the office, even after hours. Sorry not sorry.

But all of this pales in comparison to what I'd have to go through if these kinds of risks came up literally every time I got hungry.

I don't believe that filing criminal charges against the individual waiter is the solution, based on the evidence here. He didn't do it on purpose, and unless he's been educated about allergy-related issues, he probably legitimately didn't know he could cause this much harm. (Like I said, my own sister didn't believe me until she saw it herself, because she simply didn't know that such a thing was medically possible.) But making every person who has a serious allergy a shut-in also doesn't work. The criminal justice system just doesn't seem like the right mechanism to handle this (again, unless there are facts that haven't been presented in this article). And the fact that criminal charges and punishments for the individual waiter are people's first idea for how to fix the problem just goes to show that over-criminalization and the carceral state are yet another delightful Americanism that we're exporting to the rest of the world.
posted by decathecting at 9:07 PM on August 6, 2016 [7 favorites]


One of the things that really concerns me in restaurants is food that is pretending to be other food. I only recently found out that much of what restaurants claim is lobster (unless it's in the shell, obviously) is actually a frozen product made of fish paste. I'm allergic to fish, but not shellfish. So I tend to order shellfish when that's an option.

Now I'm going to have to not order lobster anything. Luckily my allergy hasn't so far been life threatening, but if I eat a whole meal of fish, my throat starts to close up, so it's not something I like playing around with. What is dangerous is that I will inform a restaurant about my fish allergy if I'm thinking of ordering something I suspect may have fish in it, like stuffed shrimp, seafood soup, etc, but if the menu says lobster, I wouldn't have thought to ask for clarification or warn them about my allergy.
posted by threeturtles at 1:29 AM on August 7, 2016 [6 favorites]


I don't actually see many people in this thread insisting that the restaurant or the server could not possibly have been negligent (I for one said the opposite in my first comment) or, really, any arguing that that some higher form of standards for allergy handling would be bad or completely futile.

I actually really disagree with this reading of the thread for the following reasons: 1. some comments to basically that effect seem to have been deleted, which always puts people in a weird position of either having to pretend nobody has argued that, or else looking like a crazy person; 2. several people have argued that imposing any additional standards would be necessarily unfair to restaurant workers, because restaurant workers are economically exploited; and 3. I think that the argument that the diner is 100% responsible, as per the many comments that say "people with allergies should never eat out, period" is actually necessarily equivalent to an argument that a restaurant or server cannot possibly be negligent (if a diner with allergies always bears 100% of the risk when eating out, as again many people in this thread have argued, it follows that negligence on someone else's part is impossible, because there is zero responsibility left for them to possibly abdicate).
posted by en forme de poire at 2:50 AM on August 7, 2016 [7 favorites]


P.S. I'm like five beers deep rn so if that didn't make any sense, oops I guess
posted by en forme de poire at 2:51 AM on August 7, 2016 [1 favorite]


The Quebec restaurant association has been mulling in the media in the past couple of days recommending that most places do stock epipens and have at least someone on the floor at all times who knows how to use one. This is like 15 minutes worth of training, which mostly consists of take the cap off here, and jab hard. Not exactly rocket surgery.

The association head compares it to the recent push to put AEDs in as well. So it seems that this is likely to happen in the next few years at least. Clearly they see this as something achievable the restaurant industry should be doing for its customers.
posted by bonehead at 8:23 AM on August 7, 2016 [5 favorites]


I guess we can be happy that if we have a thread about how some Uber driver plowed through a pack of bicyclists because he was playing Pokemon Go or drunk, we can have people come on to argue that he shouldn't be prosecuted for negligence because:
* It's the bicyclists responsibility to look out for people who are drunk, not the driver's.
* Bicyclists should just stay at home if they don't want to get run over.
* It's just too much to expect underpaid Uber drivers to know all those rules and regulations.
* Hey man, doctors kill people all the time, so we should just forgive and forget.
* I know the bicyclists say the Uber driver was all over the road, but I'm suspicious of their account.
* Expecting impoverished Uber drivers to not run into wealthy bicyclists is totally class warfare.
* If we expect Uber drivers to take responsibility, I know I could never be an Uber driver. And THEN what?
posted by happyroach at 9:05 AM on August 8, 2016 [16 favorites]


Aside from the one dude who seemed to think that either the waitress was mentally ill, or that one should consider that she might be*, there have been some great points made. Thanks for all the faves from my last post, and here's some more thoughts:

Every table service restaurant should have a protocol for special diets/allergies and it should look like this:

"Hey everyone, welcome to Wroughtirony's, I'm Wroughtirony. What would you all like to drink? Can I suggest an overpriced bottle of wine, one of our alcohol-free artisnal infusions or a Rum Punch that we renamed and serve in a special cup?"

"Okay then! Does anyone have a dietary restriction or allergy I should know about?"

And that's when I get out my pen and write, in a agreed-upon system, something like "Seat one is a vegan to the point where they cannot eat anything with the brand of sugar we use because it might be processed with bone char."

"Seat two is 'gluten sensitive' but says not to worry about cross contamination and that they might have a little bread if they're feeling naughty and the pasta app "should be fine"

"Seat four WILL LITERALLY FUCKING DIE IF HE SEES A PECAN. Immediate chef consult needed!!!!!!"

"Seat five is allergic to fresh stone fruits, cooked are fine"

"Seat eight keeps Kosher, gimme a heads up if any of the specials have anything hiding in them I might not know about."

"Seat nine has celiac disease."

etc.




*psssst. I'm mentally ill!
posted by Wroughtirony at 3:35 PM on August 8, 2016 [5 favorites]


Happyroach, I can only speak for myself, but these are things I believe to be true:

(1) A server can give someone the wrong food because they were negligent

(2) A server can give someone the wrong food without being negligent

(3) The food service industry lacks the regulations and procedures that are needed to minimize the risk of serving someone the wrong food, resulting in more incidents of (2)

Someone who plays Pokemon Go while driving has made a deliberate decision to engage in behavior that they know is dangerous. They did so despite having a relatively easy solution to follow (turn off the game). I'm comfortable calling that negligence. But assuming that all cases of someone getting the wrong food is negligence would be like assuming that all car accidents must occur due to negligence.
posted by Kutsuwamushi at 12:05 PM on August 10, 2016


Except that no-one here has assumed that all cases of someone getting the wrong food are negligence. Indeed, this case is newsworthy because it's so unusual, being the first time a waiter has faced a negligence charge. The fact that criminal charges are being considered at all suggest that it's at least plausible that this is an incident of (1), though we don't know the outcome of the investigation yet and the reporting seems to imply it won't amount to anything.

If you're arguing that (3) means that all incidents should be treated as incidents of (2) until regulations and procedures are established to handle the risk, I could get behind that. If you're also arguing that, if this waiter is prosecuted, it will set a precedent whereby all incidents risk being treated as (1), I also agree with that concern.

But, I haven't seen happyroach, or anyone, arguing that all car accidents or all food accidents are due to negligence. I also think that if this is actually a case of (1), I'd rather the diner had some legal recourse rather than just have his near death experience automatically assumed to be (2), just as I'd rather the bicyclists have some recourse than have the Pokemon-playing driver's actions handwaved away because prosecuting him would be the thin end of the wedge.
posted by tel3path at 12:46 PM on August 10, 2016


Except that no-one here has assumed that all cases of someone getting the wrong food are negligence.

Except that several people have effectively made this argument. See all arguments that it's not too much to expect a waiter to get an order right all the time since getting orders right is their job (ex: Etrigan, Errant, AutumnWreath). See the arguments that serving someone an allergen is per se negligent (ex: maxsparber).

You aren't making that argument, but several people are, and that is what those of us who are (or were) in food service are responding to.

You haven't made this argument, and that is what a lot of us who are (or were) in food service are responding to.

If you're arguing that (3) means that all incidents should be treated as incidents of (2)

No, I've said nothing to that effect whatsoever. You're still assuming that I'm arguing against the idea that waiters who serve the wrong food CAN be negligent, when I'm arguing against the idea that they necessarily ARE negligent.
posted by Kutsuwamushi at 2:55 PM on August 10, 2016


No, I've said nothing to that effect whatsoever. You're still assuming

I wasn't assuming anything one way or the other, I was asking whether you thought it was reasonable for the law to treat such incidents as non-negligence if, and as long as, the real problem is structural.

I'm also very clearly not interpreting you as arguing against the idea that waiters who serve the wrong food can be negligent, and in fact would have to be very stupid to interpret you that way, since you've very clearly said the opposite. I was asking you whether you thought two things could be true at once: that the waiter could be negligent in reality, and that it might be inappropriate ever to legally charge a waiter with negligence given the fallibility of the systems in which they work (or, perhaps, the inevitability of human error).

If I were turning my car out of a junction and another car hit me sideways-on, I'm legally held to be automatically at fault for that in the UK (it's not a perfect comparison because such a car accident isn't a criminal matter, but I hope you see what I mean). In a theoretical case where I got hit sideways-on but it wasn't my fault in any way, then I could be the injured party in reality and the guilty party in the eyes of the law.

The press articles seem to be driving at the idea that negligence is so difficult to prove, and/or the consequences of pressing criminal charges would set such a bad precedent, that it's a non-starter.
posted by tel3path at 4:22 PM on August 10, 2016


I was asking whether you thought it was reasonable for the law to treat such incidents as non-negligence if, and as long as, the real problem is structural.

No, I haven't made that argument. I can imagine situations that I think should be treated as negligence, e.g. if a server knowingly lies to a customer, ignores well-established restaurant procedures for handling allergies, etc.

But I do think these will be a small minority of cases compared to those that are due to inevitable human errors like miscommunicating or forgetting an order, especially since most restaurants have few checks against that. Additionally, negligence will be harder to prove--and I don't think the solution to that is reducing the burden of proof.

I could be the injured party in reality and the guilty party in the eyes of the law.

Yes, there are cases like this, but it's not considered something to strive for; it's in the "cost" column of a cost-benefit analysis.

Also, I think that the driving analogy breaks down here, for a few reasons. As you mention, it's not a criminal matter. But also, we're talking about a system that has been engineered to minimize this kind of accident. It would be unjust to hold you accountable otherwise.

We also settled on a relatively unusual situation re: how to handle liability with cars, with mandatory insurance. That makes it pretty impossible to compare how non-criminal liability is apportioned to criminal negligence.
posted by Kutsuwamushi at 5:51 PM on August 10, 2016


See all arguments that it's not too much to expect a waiter to get an order right all the time since getting orders right is their job (ex: Etrigan,

That is not what I was saying. I was pushing back against your sort of globalized "Well, things are gonna go wrong, whaddaya gonna do..." excuse. This server brought the one thing that could kill the customer after being warned. There's a gulf between "I ordered my steak rare, and this is medium" and "I told you that salmon may kill me, and you brought me salmon."
posted by Etrigan at 6:08 AM on August 11, 2016 [2 favorites]


Then I can move your name to the second group. Whatevs.

A mistake that results in the wrong order being brought to the customer may or may not result in them being served an allergen. And mistakes can happen even if you're careful, especially in a noisy, chaotic environment where there are no procedures or checks to follow.

"Well, things are gonna go wrong, whaddaya gonna do..." excuse.

It's not an excuse; it's being realistic about human capabilities. I've worked in food service and I know how such mistakes can happen without the server being negligent. As I said in a previous comment, anyone who thinks that they would never make such a mistake is dangerously overconfident.

As for saying I'm making a "whaddaya gonna do" excuse, I've said several times that what we should do is implement systemic solutions, and I've also given examples of behaviour on the part of servers that I do think is negligent.
posted by Kutsuwamushi at 9:08 AM on August 11, 2016 [1 favorite]


Then I can move your name to the second group.

I haven't said whether I think this server (or any other) should be criminally charged for something like this or whether it's "per se negligent".

I've worked in food service and I know how such mistakes can happen without the server being negligent.

So have I, and so do I. I also know how such mistakes can happen because of the server being negligent. But the existence of those potential scenarios does not mean that this particular case is one of them, either way.
posted by Etrigan at 9:50 AM on August 11, 2016 [1 favorite]


There are a ton of other things you can do while driving, other than playing Pokemon Go or drinking, that could be construed as negligent or even reckless: ripping a U-turn or merging into the bike lane without checking adequately, reversing into a parking space without actually turning to look behind you, fiddling with the radio, trying to put on makeup, etc. For some of these there are specific laws against them, and for others they fall under the general rubric of "not exercising reasonable care." Also, drinking or interacting with a smartphone while driving seem obviously horrifying now, but that's partly a function of how much it's been drilled into drivers new and old during their training, and partly because of specific laws and regulations that have been passed.
posted by en forme de poire at 4:30 PM on August 11, 2016


Just want to give kudos to all the people who are allergic to peanuts and seafood etc. but who still go out to restaurants to eat. I would be too worried about something so serious being completely out of my control, somebody fucking up, or something not being properly disclosed at the back-end.
posted by turbid dahlia at 5:48 PM on August 11, 2016


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