Food Court

What lawyers can do—and restaurants can’t—when dinner turns ugly and salads have rats.

In a day and age where would-be reality stars on Fear Factor choke down sheep eyeballs and pig rectum for a shot at $50,000, one would think that finding a rat in a McDonald’s Bacon Ranch Salad would hardly be worth $1.7 million. Don’t tell that to Todd Haley, passing game coordinator and receivers coach for the Dallas Cowboys, his wife Christine, or their live-in nanny Kathryn Kelley. They’ve filed a lawsuit in Tarrant County seeking that much against McDonald’s, after the salad that Christine Haley bought from a Southlake outpost of the fast-food chain allegedly showed up complete with a six-inch-long dead rat nestled amid the lettuce. According to family spokesman Scott Casterline (son of their attorney Cecil Casterline), the incident “has traumatized Miss Kelley and Mrs. Haley. They have fears about their health. They have fears about eating. They can’t look at food the same way.”

How common are such stomach-churning claims against the restaurant industry? In recent years, perhaps due to a perfect confluence of our litigious and fast-food-loving society, an increasing number of such cases are surfacing. Within weeks of the Haley lawsuit, a Gibsonville, N.C. man had also sued McDonald’s, claiming that he had bitten into his salad on August 9 only to come away with the top half of a mouse; he’s seeking a mere $60,000 in damages. In 1999, a Canadian family sued McDonald’s as well, claiming that their 9-year-old daughter bit into a Big Mac with rat parts between the two patties. Other restaurant chains haven’t exactly been immune, either. A New York woman filed a $50 million lawsuit against Wendy’s claiming she became sick to her stomach and had to be rushed to a hospital after a November 1995 incident in which she nearly swallowed a mouse head while eating a bowl of Wendy’s chili. In that incident, Wendy’s found no evidence of rodent activity and had, in fact, passed a Health Department inspection with flying colors less than one week earlier.

While the majority of such cases are settled out of court with confidentiality agreements, the investigations sometimes reveal unsavory motives behind these lawsuits. In April 2006, a Virginia woman and her adult son were convicted of extortion for claiming they found a dead mouse in their soup at Cracker Barrel and attempting to squeeze money from the casual dining chain. In June 2006, a Michigan man was sentenced to a minimum of 16 months in prison for extortion after admitting he had stuffed a dead mouse into his burrito to fabricate a claim against Taco Bell.

››  THE TAKEAWAY

1. Rodents in
food make headlines.

2. Headlines don’t have to be true to make an impact.

3. Health inspections are good for peace of mind, but also evidence for the defense.

Perhaps the most sensationalized hoax came in March 2005, when Anna Ayala claimed she found a severed human finger in her chili at a San Jose Wendy’s and asserted a highly publicized claim against the fast food giant. The case became the stuff of late night talk show punchlines and inspired a CSI-like probe into the evidence. The “case of the missing finger” pointed more and more to Ms. Ayala herself, who had a history of filing claims against corporations, including making a similar allegation against a Las Vegas-area El Pollo Loco restaurant. Ms. Ayala dropped her claim due to the “great emotional distress” of the investigation; when she and her husband pled guilty several months later to criminal charges of conspiring to file a false claim and attempted grand theft, no doubt their prison sentences (nine years and 12 years, respectively) must have been an even greater source of distress. One wonders how the chili is in jail?

The Wendy’s chili scam provides valuable insight into how a restaurant reacts to such accusations. Wendy’s took prompt steps, launching a massive internal investigation, hiring outside private investigators, offering a $100,000 reward for information on the severed digit’s original owner, and of course countering with its own publicity machine. Despite such efforts, this incident demonstrates the fragility of a corporate reputation. The case and ensuing publicity triggered losses to Wendy’s in Northern California in the millions of dollars; sales were down dramatically for weeks, forcing layoffs and reduced hours for employees at many franchises. Regardless of the legitimacy of the charges, the public relations nightmare of such tainted food allegations can have a devastating effect.

What kind of legal arguments does a restaurant face in situations like the Haley case, and how should it respond? First of all, a person injured or made ill by food containing a foreign body or substance may recover damages under strict liability if the food was unreasonably dangerous. While a jury in Tarrant County will ultimately decide what is unreasonable, generally speaking the chances for liability increase the further the food falls below the restaurant’s internal standards, industry practices, and regulatory requirements. On the flip side, the stronger the evidence is of meeting or exceeding such standards, the better the defense. In the Haley case, for example, the two health code inspections conducted by the Tarrant County Public Health Office of the restaurant where the salad was purchased (done on June 7 and August 16) found no violations. Although the restaurant has been cited for a number of minor infractions over the years (like inaccurate freezer thermometers or cross-contamination of cooked and raw foods), none warranted immediate action. Santos Navarrette, Tarrant County’s associate director for environmental health and disease control, told the Associated Press, “That particular restaurant has had a real good history with us going out and doing inspections.” Tarrant County Environmental Health Manager David Jefferson also noted in a November 2006 Dallas Observer article that this McDonald’s has never shown any signs of the presence of rodents—“No rub marks on the baseboards. No feces. Nothing.”

Food for Thought

26 million
Approximate number of meals served daily in the over 13,000 McDonald’s restaurants across the U.S.

$14
Amount spent by Christine Haley on food at a Southlake McDonald’s drive-through.

$1.7 million
Amount sought in a suit by Haley, her husband Todd, and the family au pair Kathryn Kelley when a salad purchased allegedly contained a dead rat.

Besides a theory of strict liability—after all, salads aren’t supposed to have rats in them—plaintiffs also typically assert a breach of implied warranty of merchantability, namely, that the food wasn’t fit for consumption when it left the restaurant’s hands. The main cause of action is one of negligence—that the restaurant had a duty to provide food that was wholesome and safe for consumption; the duty was breached by an act or omission on the part of the restaurant or its employees; and that the breach of this duty damaged the plaintiffs. In the Haley case, both Ms. Kelley and Mrs. Haley claim that they immediately vomited upon realizing the presence of the dead rat and for days afterward couldn’t eat. For weeks their appetites were affected. Concerned over the potential transmission of disease, both women had regular testing for months afterwards that was negative for any adverse physical effects. However, the emotional effect has been a more lasting one. Both women have reportedly consulted with a Dallas clinical psychologist for lingering stress and nightmares. Todd Haley has sought damages for “loss of consortium”; while he didn’t partake of the salad, he claims that his marital relationship has suffered because of his wife’s alleged trauma. Haley, who has already endured a stormy relationship on the field with Cowboys star Terrell Owens, faced some understandable jokes after the lawsuit. Returning home from a game against the Carolina Panthers, the coach received toy rats from Owens and some of the other Dallas players.

What exactly happened? According to the Haley’s lawsuit, Mrs. Haley ordered approximately $14 worth of food from the drive-through at the Southlake McDonald’s on June 5, 2006. After arriving home, she and Ms. Kelley opened the clear plastic top of the salad container, applied the salad dressing, closed the lid, and shook the container. Mrs. Haley took at least one bite, and Ms. Kelley reportedly took seven or eight before her fork nudged the dead, furry, little intruder. According to the plaintiffs, they called restaurant owner Ken Lobato, who arrived at the Haley house shortly thereafter to inspect the salad and rat. Upset with what they believed to be a lack of a properly apologetic attitude, Mrs. Haley refused to relinquish the salad container and preserved it in her freezer as evidence (the carcass was later obtained and shipped by McDonald’s lawyers to a laboratory for testing). After an unsuccessful attempt to resolve the matter through mediation, suit was filed. Bill Whitman, a spokesperson for McDonald’s U.S.A., stresses that while McDonald’s takes this “very seriously,” their internal investigation gives them “absolutely no reason to believe that object came from Ken Lobato’s restaurant,” or that it “ever passed through Ken Lobato’s restaurant.”

And so, litigation rolls on. Records of everything from Health Department inspections to third-party pest control providers to wholesale produce vendors will be sought, as will documentation of any previous customer complaints and interviews with restaurant employees, all as part of the discovery process’ search for the truth. Where did the dead rat come from? And does it seem odd that a six-inch rat wouldn’t have been seen through the clear plastic container top, or after it was opened, or before multiple bites were taken? It will be up to a jury to solve the mystery of the “McRat.”

John G. Browning is a partner in the Dallas law firm of Browning & Fleishman, P.C., where his practice is devoted to civil litigation. He is also the published author of one book, a contributor to two others, and an award-winning legal journalist whose work has appeared in publications throughout Texas and the United States.

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