Restaurant Chain Wins Appeal in Tampered Food Case
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Dec. 10, 2012 – The steak Kevin Hansen ordered from a Texas
Roadhouse restaurant wasn’t supposed to have hair in it. But
Hansen recently lost his appeal against the restaurant to collect
tort-based damages for the illegal actions of a cook who intentionally
put it there.
In 2008, Hansen stopped into a Texas Roadhouse restaurant in West Bend
for a medium-rare steak. The steak he ordered was overcooked, and Texas
Roadhouse gave him one for free to take home. But not before cook Ryan
Kropp added a special ingredient: his own pubic
Hansen took the steak to-go and noticed the hair when he sliced
into it the next day. He took it to police station and filed a report.
Kropp was convicted for placing
foreign objects in edibles.
Hansen then filed a lawsuit, alleging four causes of action against the
restaurant. He said Texas Roadhouse was negligent in hiring and
supervising Kropp, the restaurant was vicariously liable for
Kropp’s actions, breached an implied
warranty that food be fit for human consumption, and acted with
intentional disregard by not following up on reports about Kropp’s stunt.
Kropp had told a co-worker what he’d
done, and the co-worker told a supervisor, but the supervisor did not
make attempts to identify the compromised steak or locate Hanson.
After a five-day trial, the jury awarded Hansen nearly $30,000 in
compensatory damages and another $100,000 in punitive damages. The court
entered judgment. An appeal followed.
Roadhouse Inc. v. Hansen, 2010AP3137 (Dec.
5, 2012), the District II Wisconsin Court of Appeals ruled (2-1) that
Hansen was not entitled to tort-based damages.
“Because the jury did not find tort liability, much less award
compensatory damages based on a tort claim, punitive damages are not
available,” wrote Judge Lisa Neubauer.
The jury found that Kropp acted outside the
scope of employment, precluding Hansen’s vicarious liability claim
against Texas Roadhouse.
The jury also found that Texas Roadhouse was negligent in supervising
Kropp, but the negligent supervision did not
cause Hansen’s damages, a necessary element for that specific
claim. “Thus, any claim based on negligent supervision fails as a
matter of law,” Judge Neubauer
The jury found that the restaurant intentionally disregarded
Hansen’s rights after becoming aware of Kropp’s actions, but this was a question
relating to punitive damages. The appeals panel explained the trial
court could not imply a claim for general negligence.
“It is undisputed that the punitive damages question did not pose
a causation question,” the majority wrote. “So even if the
evidence supported a finding of negligence and an attendant award of
punitive damages, the jury did not make that finding,” Judge Neubauer wrote.
The appeals panel majority reversed orders entering judgment to Hansen
for compensatory and punitive damages based on general negligence. The
panel also rejected Hansen’s claim that Texas Roadhouse was
negligent for hiring someone with prior drug and alcohol problems.
“Absent additional evidentiary support, we agree that the jury
would be invited to speculate that Kropp’s prior
drug and alcohol-related offenses could have reasonably alerted Texas
Roadhouse that he would deliberately engage in criminal tampering of
food,” Neubauer wrote.
In dissent, Judge Paul Reilly ruled that Hansen presented a negligence
claim, the jury ruled on it, and would have affirmed the compensatory
and punitive damage awards.
“Both the complaint and the amended complaint alleged negligence
on the part of Texas Roadhouse management, and the jury found Texas
Roadhouse negligent,” Judge Reilly wrote. “The majority
seems to fault Hansen for giving too much detail about his negligence
claims in his pleadings.”