Has anyone on this board ever tried to get a restaurant to pay the medical bills if they made a mistake causing your child to have to use epi and call 911? The story is that dd was in Starbucks. Her milk allergy is not severe any more. She eats milk cross contaminated items and baked milk with no problems. She ordered a soy vanilla latte as she has done many times. Dd started to drink it, drank about 1/3 to 1/2, and then felt her mouth tingling. She noticed that the cup usually says "S" on it for soy and this time it did not. She went up, asked the employee who had made the drink if she was sure she had used soy. The employee was irritated and said she could tell by looking at the drink that it had soy milk, not real milk. Dd and her friend then left. As soon as they walked out of Starbucks, dd then had noticed a change in her voice, that it sounded deeper, and her friend said she was not walking straight. She used epi, called 911. Paramedics came and by the time she got to the ER she was fine. After we were released from the ER, we went back to Starbucks and spoke to the manager. Dd is also allergic to peanuts. She has never had a milk reaction requiring epi, and we really needed to know was it peanut cross contamination or is her milk allergy suddenly more severe. The manager said there is no way that an employee can tell by looking if the drink is made with soy or regular milk. Since the cup did not have the letter "S" on it, it must have been made with regular milk. We checked everything else, no apparent peanut cross contamination. She said she would talk to the employee. This was five weeks ago. We don`t know if the employee is still working there or not.
So far I have almost $1000 in bills for the ER visit, new epipen, and follow up allergist visit. Insurance deductible is $2000. Ambulance bill has not arrived yet, but that should put us over $2000.
I have contacted Starbucks repeatedly asking them to reimburse me for my medical costs. I finally got to someone who said she would call back with a fax number for me to submit the bills. She never called back. I have emailed and called several times and gotten nowhere.
Just wondering, has anyone on this board who had a restaurant make a mistake requiring epi ever tried to get the restaurant to pay the bills? This was certainly not dd`s fault. She is extremely cautious and reads the labels if ordering something new at Starbucks.
I haven't been in a Starbucks, but the last coffee shop I was in had a CYA notice at the cash and at the drive thru. They do not take responsibility, but make it clear.
Wow. That's awful. I assume you've been talking with someone in Seattle about this? If you haven't kicked it up the chain that far, I would--I would only talk with Corporate at this point.
I don't have any advice about getting reimbursed but I am so sorry this happened. And you can't tell. Before I had an ana reaction to milk (just was experiencing intense gastro pain that I thought was lactose intolerance) I used to order coffee with soy milk at Starbucks. Not only can you not see it or smell it that it is soy and not dairy, but it tastes exactly the same. I'm not surprised she could not tell the difference and it makes it really up to the employees to be vigilant. I would always ask a few times whenever I went "Is this really soy? Are you sure?". I hope you get it resolved.
Sadly, the law on this more often favors the manufacturer or service provider. Past lawsuits have failed because consumers knew they were taking a risk. In order to get damages, you have to prove negligence, not just a mistake.
Good resource: http://www.wilmerhale.com/files/Publication/d19594c1-f7de-4d49-8683-0096824320db/Presentation/PublicationAttachment/a691fc8e-2854-4f6e-a2aa-06ba1d5b93e3/SC%20roses.indd.pdf (http://www.wilmerhale.com/files/Publication/d19594c1-f7de-4d49-8683-0096824320db/Presentation/PublicationAttachment/a691fc8e-2854-4f6e-a2aa-06ba1d5b93e3/SC%20roses.indd.pdf)
The law may be on Starbucks' side, but any sicially responsible company would want to do right. And Starbucka makes a big show of being socially responsible. I don't know whether it real or for show, but that might be the way to approach it, rather than from the legal responsibility side of it.
I agree with Boo and Hedgie here.
ANY time that you order anything at a food-service business, you're pretty much consuming at your own risk-- you KNOW that the person behind the counter knows less than you do about: a) cross contamination and b) (probably) the consequences of an error.
Yes, you can (as a consumer) do extensive things to make your needs clear... but... ultimately, you are assuming that the other party understands you. Not everyone can/does.
I'm really glad that this has a happy ending-- not all of these stories do.
The socially conscious thing to do, of course, is for the company to offer to pick up at least part of the tab for the medical care made necessary via their error-- but bear in mind that most restaurants won't do that even in much clearer cases of food-borne ILLNESS. That is arguably a risk that consumers don't even know that they are taking, whereas this is (as Boo noted) seen as a "foreseeable" risk if you have food allergies.
:-/
I realize that probably isn't what you're hoping to hear; understand that I'm VERY sorry that this happened to your DD and in no way think that this was right, but that I think that there probably isn't a lot of legal precedent in your favor here.
What was the perceived risk if she accidentally drank non-high heat treated cow's milk prior to this reaction? Hypothetically speaking, of course.
I'm not a lawyer, I'm not even close to one but what pops up first in my mind is the concept of innocent misrepresentation.
[spoiler]Innocent misrepresentation is one of the three recognized varieties of misrepresentations in contract law. Essentially, it is a misrepresentation made by someone who had reasonable grounds for believing that his false statement was true. So in the above example, if the seller didn't know the stereo was actually old, he would only be liable for an innocent misrepresentation. In the real world, however, it is often the case that because the other two varieties of misrepresentation (negligent and fraudulent) are much more difficult to prove (because of the complexity of proving intent), often this is the only course of action left available.
What Constitutes Innocent Misrepresentation?
There are five elements that must be satisfied to prove innocent misrepresentation:
*Someone must makes a false representation (that must be false at the time of the transaction, AND remain false. If it turns out to be true later on, there is no case.)
*The misrepresentation is "material to the transaction," which means it must be about an important element of the transaction at hand. If you are selling a car and say that it has 15,000 miles on it when it actually has 15,124 miles, this would not be a material mistake.
*The other party must substantially rely on the lie. This means the other party not only must go through with the transaction, they must do so only because of the misrepresentation. If the buyer, for instance, would have bought your item regardless of what you said about it, this does not count. They must substantially rely on the falsehood.
*The lie must also proximately cause the other party to suffer damages. In other words, the buyer must be actually harmed by the final transaction in order to sue.
In addition to those four elements, which are necessary for negligent and fraudulent misrepresentation as well, there is a fifth element that is unique to innocent misrepresentation.
*The loss of the one party must benefit the other. This is an odd and very vague requirement, but one that the courts have held up nonetheless. Essentially, if the misrepresentation made does not benefit the person who made it, (or hurts BOTH parties to the contract), then the courts will not consider it a case of misrepresentation. Just exactly how the court will measure if a party has "benefitted" from a lie remains indistinct, and various states interpret this rule differently.[/spoiler]
For clarification's sake I am not recommending anyone with an IgE-mediated life-threatening allergy take a risk beyond their known, personally derived risk-benefit calculus. This is simply how, if I were to hypothetically argue for reimbursement for medical damage, I would take on that argument.
Now for the other side of the coin. For the sake of argument let's say negligence, fraud and social responsibility are off the table in order to take a look at a lower standard of innocent misrepresentation which doesn't include proof of intent as per the cited text. Is it correct? Dunno, not a lawyer but working through the logic nonetheless.
Could the conditions be satisfied? Possibly. Can you prove it? Probably not. How would you demonstrate the barista did not make a soy latte? How would you demonstrate the latte was not soy based but merely contaminated? How would you demonstrate that the latte represented as soy was not taken by another person, meaning a mistake made between customers and not service? How would you demonstrate it was milk that induced the reaction and not another allergen? And that's not even delving into communicating known risk to server.
So that's both sides from my limited perspective. In a way I see OP's situation as unique because the customer wasn't seeking a guarantee of "free of" but to consume a product that was materially correct/true with the understanding that likely contamination was always present, medically tolerated historically and therefore acceptable. Although FALCPA wouldn't cover this instance that somewhat correlates to the initiation of a product recall. Shared lines are not revealed, contamination is expected, but undisclosed ingredients, gross contamination or mistaken production/labeling of top 8 have all been catalysts for recall.
I want to point out one more item re: OP's situation and risk. According to conventional wisdom DD was following exactly what is promoted top-down from medical to the FA community. Only avoid what you must, live a normal life, take your chef cards and use some basic precautions, rescue meds in case of accidental ingestion, follow EAP. In that context how exactly is OP's DD not going by conventional medical wisdom? Just because it didn't work out in one instance doesn't mean she wasn't following status quo.
Now that has zilch to do with Starbucks as a corporation but remember they are not only a food service but also have a line of manufactured items. At what point should they have a different standard for in store food service than their boxed manufactured products? I would argue where the production is not dedicated and supervised but individualized real time per instance and highly varied as per the in store experience is. But still, why do we listen to allergists when it comes to food manufacturing anyhow? How much should their recommendations on how to examine risk factor in? Do their quality of life studies accurately reflect reality?
Lots of information here. I think there is a key difference between a cross contamination reaction versus a reaction due to an employee making a mistake and then lying about it. I have seen disclaimers in various restaurants regarding cross contamination. I have no problem with that and would agree that by eating there one is accepting cross contamination risk. However, this is not the situation here. I don`t think Starbucks has any sign up, but if they do it is not about risk of employees making a mistake. Dd has eaten a bit of unbaked milk here and there (on the allergist`s advice) with mild non life-threatening symptoms. Her cap rast to milk is normal, less than 0.35. She has a positive skin test, but as we know it is common for the skin test to remain positive after outgrowing. She eats pizza with no problems. We believed that her milk allergy is no longer life threatening. By comparison, if she steps foot in a restaurant and sees even one peanut item on the menu that is made in the restaurant, she leaves. She is very careful. Many on this board, if they had consumed the amount dd mistakenly consumed at Starbucks would have had a much more severe reaction than dd did. Aren`t these CYA notices usually about cross contamination? The issue of using regular milk instead of soy and lying about it is a totally different, more serious issue. IMO, it places much more responsibility on the restaurant.
Interesting comment about their claim of being "socially conscious". I actually emailed the CEO, quoting something he said on their website about Starbucks being a company "with a conscience". I then outlined in the email what happened, and related it to his statement about how Starbucks being a company with a conscience. He did not reply. I suppose it is possible that the email address I used was not correct. However, the email was not returned to me as undeliverable. I found his email address by googling him. Obviously the Starbucks website won`t have the email address of the CEO or he will be bombarded with emails.
TT, some of what you said can be addressed. We know it was not a cross contaminated soy drink, because dd eats cross contaminated items all the time and has no symptoms. She has eaten a cracker with cream cheese and had only abdominal pain. She has eaten a salad with a few shreds of cheese and only had sneezing. (This is all on the allergist`s advice, as he wanted to know what she could tolerate as she appears to be outgrowing.) We know it was not that the barista did not hear dd, because dd went back up and asked the barista was she sure it was soy. Barista said yes and said she could tell by looking at the drink. We know that dd did not get another customer`s drink because they call you by name. Dd has a fairly unusual name. Also, if that were the issue, it still does not explain what the barista said when dd went back up to her and the barista said she could tell by looking that it is soy. We know that it was not a reaction to another allergen because dd`s only other allergen is peanuts and we went back and checked on everything in the drink to rule out peanut cross contamination. Plus the manager confirmed to us that the employee had made a mistake. That is a very interesting analogy about FALCPA. It is true: if an item was sold as soy and actually had cow`s milk instead of soy, it would be recalled.
Jschwab, you are exactly right that you cannot tell the difference between milk and soy in these frothy syrupy coffee drinks. I have gone and ordered a soy latte and I really cannot tell if it is milk or soy. I always worried that some day Starbucks would make a mistake but based on past history, we believed if that happened dd would only have a runny nose or sneezing. That is dd`s history. She is 18 and has almost outgrown her milk allergy, or so we thought.
Macabre, I really don`t know if I am talking to someone in Corporate or not. I have called the 800 phone number on their website. I have been unable to get any other phone number for them. I did find a 206 area code phone number on their website, but when I called I just got the same voice mail as I did when calling the 800 number. Do you have any idea how I can reach the Corporate Office? I thought the email would work, since I emailed the CEO, but apparently not.
Silver Lining, when you saw the disclaimer was it about cross contamination or was it about the employee making a mistake and the customer receiving a drink other than what was ordered?
But can you prove what you know? And I don't mean to me here. Those are probably 'show me' proofs you might be asked for. I'll leave that between you and Starbucks.
Glad your DD made it through her reaction (good follow through on EAP). Also glad you are allowing me to work through the issue on both sides.
QuoteSilver Lining, when you saw the disclaimer was it about cross contamination or was it about the employee making a mistake and the customer receiving a drink other than what was ordered?
I don't remember the wording, but, I recall my husband and I discussing that it was worded in such a way that it would cover both. We were specifically discussing it because someone he knew had died from an anaphylactic reaction at another of that coffee shop. (Different situation then your daughter. The doughnut that she had always eaten safely, suddenly had walnut in it. She hadn't asked because it had always been safe.)
However, when DH & I were discussing, we didn't know the details.
As for sueing for medical expenses. I'm no lawyer, and have no idea whether there are grounds. I know Americans sue successfully more often then Canadians. But, I think of Stella Liebeck and. I know American companies get out of paying for medical expenses they should have to pay.
Starbucks doesn't have that general disclaimer. Products have warnings, but there is no general disclaimer.
Lieback's damages were reduced because she was found partly at fault. She was also able to produce proof that the circumstances that led to her 3rd degree burns were known to McDonalds as hazardous and that others had suffered similar burns due to those same conditions prior to her incident. The only commonality there is that it's food service. But it does highlight one unfair burden we as consumers place on a corporate that we would not hold a smaller place accountable for.
Quote from: Former Member on November 17, 2013, 06:24:35 PM
Jschwab, you are exactly right that you cannot tell the difference between milk and soy in these frothy syrupy coffee drinks. I have gone and ordered a soy latte and I really cannot tell if it is milk or soy. I always worried that some day Starbucks would make a mistake but based on past history, we believed if that happened dd would only have a runny nose or sneezing. That is dd`s history. She is 18 and has almost outgrown her milk allergy, or so we thought.
So you knew it was a risk and that they were likely to make a mistake and assumed the risk anyway. If your DD chose to assume that risk, then it's her responsibility - not Starbucks. Did she inform them of her dairy allergy at the time she ordered? If not, then they were unaware of the risk (unlike she who was fully aware).
I think that where the manager fessed up about the mistake already, you do have some recourse. But perhaps not full recourse if she didn't explain about her allergy when she was asking the staff about soy vs milk.
are all soy "milks" uncontaminated?
seems like I remember someone posting about cuties tofutti being grossly xcontaminated with milk?
sorry about the reaction and i hope you can get some help with expenses. It does seem like there is a certain assumed risk eating / drinking out with food allergies.
Quote from: yelloww on November 18, 2013, 09:21:47 AM
I think that where the manager fessed up about the mistake already, you do have some recourse. But perhaps not full recourse if she didn't explain about her allergy when she was asking the staff about soy vs milk.
What really steams me about things like this is that even if you DO tell them when you order, that guarantees you nothing, really-- and it's your word against theirs that you told them you were allergic when you ordered.
Odds are good that if they screw up the order, they didn't register you telling them to start with, and will (honestly-- at least as far as they remember) not even recall you having said anything.
:-[
Quote from: rebekahc on November 18, 2013, 09:17:50 AM
Quote from: Former Member on November 17, 2013, 06:24:35 PM
Jschwab, you are exactly right that you cannot tell the difference between milk and soy in these frothy syrupy coffee drinks. I have gone and ordered a soy latte and I really cannot tell if it is milk or soy. I always worried that some day Starbucks would make a mistake but based on past history, we believed if that happened dd would only have a runny nose or sneezing. That is dd`s history. She is 18 and has almost outgrown her milk allergy, or so we thought.
So you knew it was a risk and that they were likely to make a mistake and assumed the risk anyway. If your DD chose to assume that risk, then it's her responsibility - not Starbucks. Did she inform them of her dairy allergy at the time she ordered? If not, then they were unaware of the risk (unlike she who was fully aware).
Any time anyone eats out there is a risk. So I am not sure what you mean. Because her milk threshhold was so high, the risk was very minimal, and there is risk any time one eats out with food allergies. I don`t think that relieves the restaurant of responsibility. If it did, then there would not have been the various settlements over the years for restaurant mistakes causing allergic reactions. I believe there was a settlement between the Chinese restaurant and the family of the 12 year old pa girl that died during the December school holiday party a year or two ago. Similarly one could say but the family knew there was a risk by eating restaurant food. I really don`t think that gets the restaurant off the hook, especially with a blatant mistake such as this one and then lying to cover it up.
Quote from: yelloww on November 18, 2013, 09:21:47 AM
I think that where the manager fessed up about the mistake already, you do have some recourse. But perhaps not full recourse if she didn't explain about her allergy when she was asking the staff about soy vs milk.
When she went up to ask, she tried to tell the employee that the reason she needed to know was that she was allergic to milk. However, the employee would not let her speak and insisted that she could tell by looking at the drink whether it had soy milk or cow`s milk. We have now learned that the employee was terminated immediately after the incident.
Just pointing out a couple of logic or testimonial issues so don't shoot the messenger.
1. You weren't there. Correct?
2. Your last statement as is makes it that Starbucks was never informed of the allergy. Not at the point of sale prior to the making of the drink, and not after. Whether due to interruption, or busy clamor DD did not get the message through, accepted the explanation that barista ID'd based on look of drink alone, and still drank it.
There's two ways to take this. Emotionally defensive here, or deep consideration of weak points to make your argument stronger when it counts. I'm ambivalent about your action against Starbucks. I'm not convinced this particular incidence is negligent by a long shot, but on the other hand I think the reality for food service is that they will need to overhaul geographically where they operate in populations with epidemic levels of food allergy. That's a matter of reaching critical mass.
Quote from: twinturbo on December 08, 2013, 11:22:27 AM
Just pointing out a couple of logic or testimonial issues so don't shoot the messenger.
1. You weren't there. Correct?
2. Your last statement as is makes it that Starbucks was never informed of the allergy. Not at the point of sale prior to the making of the drink, and not after. Whether due to interruption, or busy clamor DD did not get the message through, accepted the explanation that barista ID'd based on look of drink alone, and still drank it.
There's two ways to take this. Emotionally defensive here, or deep consideration of weak points to make your argument stronger when it counts. I'm ambivalent about your action against Starbucks. I'm not convinced this particular incidence is negligent by a long shot, but on the other hand I think the reality for food service is that they will need to overhaul geographically where they operate in populations with epidemic levels of food allergy. That's a matter of reaching critical mass.
1. That is correct.
2. Huh? My last statement is that we have now learned that the employee was terminated immediately after the incident. I have no idea where you got the impression that dd accepted that one could tell if there was milk by the look of the drink and drank it. At no point did I say that. The barista lied and said that she could tell the drink had soy by looking at it and this lie occurred
when dd went up after the reaction had started. Yes, of course she informed them about her allergy. After the reaction started she went up and asked, and said she really needed to know because......then tried to say she is allergic to milk, but the barista cut her off. So yes, she told them about her allergy when ordering and no, of course, she did not drink it after reacting, which means that she did not drink it after the barista said she could tell by looking it had soy. I hope this is more clear. I don`t think an 18 year old who self injects early in her reaction and carries her epi everywhere would be foolish enough to accept that a drink is safe just because the employee thinks she can tell by looking. Definitely not my kid or probably any kid who has a parent on this board.
Re-read what you wrote. The point is, should you choose to look at it differently, is that the way I'm examining your statements now is a light touch compared to what you'd most likely come across. Another good tool to anticipate counterarguments now before you file statements, etc., would be to try debate.org as a tool like a moot court. The good ones know how to argue from views they themselves don't even hold.
I know what you are telling me. I have no idea what you or your daughter will be able to prove, or what law you will be able to prevail upon. Right now there's some second hand information on a forum using inference based on assumptions without any particular set of protections most of us can seek through ADA, FAPE, FERPA, there's none of that here.
I'm not purposely and pointlessly trying to piss you off. You are going to have an uphill battle, and if you can't prove the basics now you'll have to at some point. Better to find the weak spots now when nothing is at stake so you can be stronger with whom it matters.
Edited to add one thing I would strongly encourage you to consider. Here you are talking to the people most sympathetic that have at least walked a mile (many) in the LTFA shoes. So if this is home court, with BTDT experience to the tune of decades of combined experience, please, please consider how carefully you will have to present your argument to unsympathetic parties who have no idea what LTFA is like outside of liability. You know the line know yourself and know your enemy to determine the outcome of a battle?
Good luck with this. I think it is worth pursing to see if you can get anyone at the corporate level to speak with you.
I once had a product cause hives over much of my body and go the company to pay for medical expenses (which were not that much.) They even offered to pay more but I only wanted what the use of their product cost me.
I think they were clearly negligent. That's a huge mistake. The branch needs procedures in place to try to prevent that type of mistake.
I hear you on the high threshold and xcontam not being a big risk for your child. This wasn't xcontam. This was milk instead of soy milk. Big difference.
Proceed how?
Specifically? How do you meet the burden of proof of negligence in this instance? That is not a rhetorical question because if one can answer that OP has a much straighter line to compensation.
Upthread is a definition of negligence in a spoiler tag to save space. Negligence requires proving intent, a rather difficult thing to prove. So how?
Here's what I would do if I were OP.
[spoiler]
This is assuming you want the following outcomes.
1. Compensation for unpaid medical bills only.
2. Changes in corporate practices for food allergic customers that are reasonable and not ending only in a refusal of service to all dairy allergic customers and/or bigger CYA signs.
- Have DD write timeline exactly as she remembers like a witness statement. Refer only to that statement. Immediately stop all usage of "I know" "I feel", etc. Stick to times, statements, actions.
- Appeal to corporate interests that are shared interests with customers. Fact: food allergies in some markets are approaching epidemic levels. Fact: they will not be able to avoid serving all allergic customers
Use Sloane Miller's approach by showing how adapting practices to the reality of a growing customer base allergic to a variety of foods will help them as they help customers. Request they adopt practices to reduce contamination including employee training, separation, color coding, and the like.
Show in a timeline by DD that she met her burden of caution, that she more than reasonably sought clarification, that customers like her have been able to continue patronage but for errors that could reasonably be reduced with small changes in practice such as color coding. In the meantime because the error was made without any mediating practices you request unpaid medical bills resulting from the wrong drink be paid plus a request to put into place sensible, effective practices on the corporate side to increase service to the market that will continue to grow with allergic individuals.
The one thing I would not do is allow myself to be maneuvered into a position where the claim essentially becomes
Company established with a dairy based menu, you owe me because we were served dairy. [/spoiler]
If I were SBUX [spoiler]I'd wait you out in court. There's no way as a food service modeled around dairy and coffee I'd make any compensations involving dairy. [/spoiler]
The key IMO is context and tone in request, but also your expectations will matter. In providing full context of the dairy allergy and risk I'd stay on message about
common sense precautions,
reasonable requests,
self-responsibility with regard to
DD's timeline (not what you feel, think, "know" as someone not part of the event), highlighting the same regimen used by her to successfully manage her drinks previous years at Starbucks without incidence. Hammer away that it's something a reasonable person would do, and has done with success, that it is in keeping with the medical advice by leading allergists and organization like FARE. Create the structure so that it is
convincing that it was employee inattention that was at cause in this particular instance.
If someone has a stronger, more convincing approach go for it. That's all I can come up with.
...just seeing this all now.
Most every Starbucks I've been in over the past few years has had an Allergen Statement posted somewhere to the wording of 'eat here at your own risk if you have food allergies' in regards to the pastry case, others foods, and the drinks. They started doing this chain wide about 5 years ago maybe.
Before pursuing a lawsuit - I'd go take a look at that Starbucks to see if you can find the signs posted.
It's crappy the barista lied, true that.
Quote from: Former Member on December 08, 2013, 10:26:55 AM
Any time anyone eats out there is a risk. So I am not sure what you mean. Because her milk threshhold was so high, the risk was very minimal, and there is risk any time one eats out with food allergies. I don`t think that relieves the restaurant of responsibility. If it did, then there would not have been the various settlements over the years for restaurant mistakes causing allergic reactions. I believe there was a settlement between the Chinese restaurant and the family of the 12 year old pa girl that died during the December school holiday party a year or two ago. Similarly one could say but the family knew there was a risk by eating restaurant food. I really don`t think that gets the restaurant off the hook, especially with a blatant mistake such as this one and then lying to cover it up.
I know the family was sueing, but haven't heard of a settlement. There was a settlement with the school board.
As for the employee being fired, it may or may not be related to what happened with your daughter, but either way, proving it relates to that would be near impossible. And if you are considering legal action proof is what you need.
I'm guessing that the termination may have even been SBX's method of limiting THEIR potential liability here, too. If you can't find the employee, or point to him/her as a person under the auspices of the parent company/brand... well. They can just shrug and say "Employee failed to follow our policy, we terminated him/her, so what more do you want?" When the reality is that they MAY have done it to distance the brand from any actions that this person may (or may not) have taken.
Crappy all the way around if so, but call me cynical.
Or they may have terminated the employee completely with good motives because the employee didn't follow policy. If the incident called for a termination, they did it "out of concern" for what could have happened to your Dd. But in guessing there were other issues and this was the final straw.
Quote from: twinturbo on December 08, 2013, 06:14:50 PM
Proceed how? Specifically? How do you meet the burden of proof of negligence in this instance? That is not a rhetorical question because if one can answer that OP has a much straighter line to compensation.
Upthread is a definition of negligence in a spoiler tag to save space. Negligence requires proving intent, a rather difficult thing to prove. So how?
Here's what I would do if I were OP.
[spoiler]
This is assuming you want the following outcomes.
1. Compensation for unpaid medical bills only.
2. Changes in corporate practices for food allergic customers that are reasonable and not ending only in a refusal of service to all dairy allergic customers and/or bigger CYA signs.
- Have DD write timeline exactly as she remembers like a witness statement. Refer only to that statement. Immediately stop all usage of "I know" "I feel", etc. Stick to times, statements, actions.
- Appeal to corporate interests that are shared interests with customers. Fact: food allergies in some markets are approaching epidemic levels. Fact: they will not be able to avoid serving all allergic customers
Use Sloane Miller's approach by showing how adapting practices to the reality of a growing customer base allergic to a variety of foods will help them as they help customers. Request they adopt practices to reduce contamination including employee training, separation, color coding, and the like.
Show in a timeline by DD that she met her burden of caution, that she more than reasonably sought clarification, that customers like her have been able to continue patronage but for errors that could reasonably be reduced with small changes in practice such as color coding. In the meantime because the error was made without any mediating practices you request unpaid medical bills resulting from the wrong drink be paid plus a request to put into place sensible, effective practices on the corporate side to increase service to the market that will continue to grow with allergic individuals.
The one thing I would not do is allow myself to be maneuvered into a position where the claim essentially becomes Company established with a dairy based menu, you owe me because we were served dairy.
[/spoiler]
If I were SBUX [spoiler]I'd wait you out in court. There's no way as a food service modeled around dairy and coffee I'd make any compensations involving dairy. [/spoiler]
The key IMO is context and tone in request, but also your expectations will matter. In providing full context of the dairy allergy and risk I'd stay on message about common sense precautions, reasonable requests, self-responsibility with regard to DD's timeline (not what you feel, think, "know" as someone not part of the event), highlighting the same regimen used by her to successfully manage her drinks previous years at Starbucks without incidence. Hammer away that it's something a reasonable person would do, and has done with success, that it is in keeping with the medical advice by leading allergists and organization like FARE. Create the structure so that it is convincing that it was employee inattention that was at cause in this particular instance.
If someone has a stronger, more convincing approach go for it. That's all I can come up with.
You don't have to go to court. When I had that reaction to a product I called their customer service and talked to someone a few levels up and got what I wanted. That is what I would recommend. I didn't have to 'prove anything'.
I understand the OP has already contacted the company to no avail but I would send them a letter with copies of your medical bills and a request that they pay for them. It can't hurt to try a bit more to get them to pay for what this cost you. I don't know that I would actually go to court, though.
That is what I wrote in the spoilers. In each I take a different position as each party.
In taking OP's position I detailed how I would use what information I had to put in polite, targeted messaged requests to corporate. See spoiler for details.
In taking SBUX's position I would take my chances in court because I would not compensate anyone for dairy when my business model is dairy.
I understand you and OP, others may feel "knowing" can be substituted for proof. I disagree for reasons I've detailed for both sides. The closest specific law we have here is FALCPA for packaged goods. Outside of voluntary recalls we initiate recall requests upon testing product, do we not?
Same for negligence, lakeswimr. You need proof to show "clearly negligent" as you introduced. So it can't simultaneously be "clearly negligent" yet not need to prove it. Negligence requires proof of intent (posted upthread) which is a higher standard.
Yeah, negligence is more like "SHOULD have known, but kind of willfully CHOSE to not know."
It's not "ignorance" which is not really a choice so much as just lack of being informed.
The problem with FA in food service settings is that the latter is so common that it becomes really hard to see where it crosses into the former.
Not everyone that has been educated is magically cured of their ignorance in one go-- and some of them may never be fully enlightened. We all know this from dealing with friends and family-- there's always that one person that you're never really going to trust because they just... can't get it. They try, but they just can't go there.
Well, those people are sometimes adults who are more or less functional in every other way-- so surely they work somewhere. What if it's in food service?
I'vbe been following this thread with great interest. I just came in to say that TT is blowing me away with her clarity and analytical skills. :thumbsup:
Quote from: twinturbo on December 09, 2013, 09:26:53 AM
Same for negligence, lakeswimr. You need proof to show "clearly negligent" as you introduced. So it can't simultaneously be "clearly negligent" yet not need to prove it. Negligence requires proof of intent (posted upthread) which is a higher standard.
That is if you are taking a legal route. If you are a consumer making a complaint directly do a company you don't need to go for the in court legal standard of proving anything. I can call LLBean up today and complain and get a new shirt mailed to me for free, for example. I can return various products that didn't work how I think they should have and get a new one, depending on the business. I can complain about an experience at a restaurant or amusement park and maybe get offered free admission in the future. Not that I recommend doing such things without reason, but none of these things requires me to show anyone was 'clearly negligent'. I am suggesting the OP pursue this a bit further and see if she can get compensated. I'm not suggesting she take the legal route unless for some reason she would like do to do so. Yes, it will be a he said/she said thing except that her child doesn't react to xcontam and she would probably get a doctors note stating that a reaction of the sort that happened would have to have been caused by them putting actual milk into the drink rather than from xcontam.
:yes: Yes. All said previously in greater detail on page 1 & 2. It does require taking back the invocation of 'negligent' because it doesn't exist outside proof of intent. No court? Awesome. No proof on intent? Right on. Also no negligence. Are you angry that negligence has a specific meaning and requires a certain standard of proof? Or, I may be guessing incorrectly, you think I'm telling you, other poster, that you're wrong and I'm right? Because I can assure you we're of the same mind on CRM based solutions. It's just not the same if that helps.
Segue seamlessly into CRM (Consumer Relations Management). Done and done.
This is a repost of what I put in a collapsed spoiler from page 2 with a little expansion at the back end outside of the quote as to
why I structured it that way. More for a mental exercise than anything else.
QuoteThis is assuming you want the following outcomes.
1. Compensation for unpaid medical bills only.
2. Changes in corporate practices for food allergic customers that are reasonable and not ending only in a refusal of service to all dairy allergic customers and/or bigger CYA signs.
Have DD write timeline exactly as she remembers like a witness statement. Refer only to that statement. Immediately stop all usage of "I know" "I feel", etc. Stick to times, statements, actions.
Appeal to corporate interests that are shared interests with customers. Fact: food allergies in some markets are approaching epidemic levels. Fact: they will not be able to avoid serving all allergic customers
Use Sloane Miller's approach by showing how adapting practices to the reality of a growing customer base allergic to a variety of foods will help them as they help customers. Request they adopt practices to reduce contamination including employee training, separation, color coding, and the like.
Show in a timeline by DD that she met her burden of caution, that she more than reasonably sought clarification, that customers like her have been able to continue patronage but for errors that could reasonably be reduced with small changes in practice such as color coding. In the meantime because the error was made without any mediating practices you request unpaid medical bills resulting from the wrong drink be paid plus a request to put into place sensible, effective practices on the corporate side to increase service to the market that will continue to grow with allergic individuals.
The one thing I would not do is allow myself to be maneuvered into a position where the claim essentially becomes Company established with a dairy based menu, you owe me because we were served dairy.
There's a legal fiction called "reasonable person" who never makes mistakes, always has perfect judgment. I'm sure many of us are married to him ~). But this fake person creates a standard in common law which can cover a lot of grey areas because that's how a lot of our standing laws came into being. Reasonable person gets used a lot in determining negligence, therefore I
hinted and
emphasized rather strongly that OP's DD held fast to what reasonable person would do, further demonstrating it with DD's timeline (facts, right?) during the failed instance in comparison to her years of same protocol resulting in success. I therefore put it in their
court hands (reducing equivocacy) if DD showed them she followed what a reasonable person would do, including exercising sound judgment, in the WHOLE context of her allergy which does absolutely include a large reality of cross-contamination, that it implies the employee at SBUX did not exercise the amount of judgment in response to a reasonable person. And by association Starbucks' lack of effective, common sense protocols for management of requests such as OP's DD made. She did not ask for a drink free of any milk contamination, she used her protocols previously proven effective to successfully consume a safe for her product within her limitations. Which we can't prove, but neither can Starbucks because it has no policies or protocols in place other than WATCH OUT HERE BE ALLERGENS.
Enough so that when corporate hands it off to legal the logic works out solidly according to common law's reasonable person rather than an allergy CYA issue. To make them think twice before saying no, or at least that's the argument I put forth.
I nerd out on these things, apologies for the self indulgence! I know, I should work it out on debate.org or stick to using SCOTUSblog for recreational activities. Regardless I do think there are some deep underlying foundations that are important to all of us particularly if there is an increasing momentum for the first real allergic generation to chart a course into society which includes limiting your dining options only to what you must.
When I think of what happens to requests like this making headway into a Fortune 500 who makes big promises to stock holders and has an entire legal division I think about the one shot you get in making your case. You can't allergy mom this like you can FAPE. You don't want to be Lieback 2.0, aka McDonald's coffee grandma, in the court of public opinion where without solid context and facts you look idiotic and unreasonable. Therefore you have to show in the larger contextual sense that given your specific risk calculus that the individual has indeed shown the judgment and precaution and self-responsibility that reasonable person would have shown.
To illustrate.
Reductionist statement: A person walks in to Starbucks with a life-threatening dairy allergy (uncontextualized, remember) and has a reaction to dairy. Is surprised and wants medical bills paid. (hint: we don't want to be here)
Contextualized statement: A patron with years of experience negotiating with reasonable caution, expectation and communication went as far as she could to ensure she received product as she had before using the same protocols. Imply controls are lacking on company side that could reasonably assist said customer (color code, more care, etc.). Reality is this particular market segment is increasing, buck up Starbucks this is happening. To that end you would ideally want them to face inevitability that if they don't start making changes now that it will not go away. Better to come out the good guy proactively.
Contextualized statement using the basics of common law and reasonable as a backbone will hopefully send whomever reads it straight back to their 1L year getting hammered by their prof. It calls into question are Starbuck's practices given the reality of epidemic food allergies responding as a reasonable person would by increasing CYA rather than implementing common sense, practical and effective practices that would address the growing market that OP's DD represents? For $4-5 drinks? In one of the markets that they are strongest?
In general on an anecdotal basis I know Starbucks is hard to contact on the corporate side, at least to get anywhere. I've also held their stock so I know what the message is for profit to stakeholders. It's not about being socially responsible that's just the marketing side. Logical guess is that this would get kicked to legal and only certain persons would be allowed to dispense funds for compensation with a ton of fingerprints on it.
Thank you everyone, but especially Lakeswimmer. All I had in mind was what Lakeswimmer is posting about. It is helpful to hear viewpoints on what would happen in court, but I am not planning to sue, merely filing a claim. I would compare this to recently I was rear-ended. It was clearly the other party`s fault. I was stopped at a stop sign, she was focused on her cell phone, and she hit me. I filed a claim with her insurance company. This is all that I am trying to do with Starbucks. I am not interested in some huge lawsuit, but I believe that they should pay our medical bills which will be in the thousands after insurance. Just the ambulance will be over $1000. I have a receipt that says "soy", and no there are no signs at that Starbucks regarding allergies. If dd were a different kind of kid with a less aware parent, she would not have been carrying an epi. Who knows what would have happened then. Maybe the reaction would have stopped, maybe not. I do know that her BP was dropping during the reaction, because dd`s friend who was there said dd was not walking straight. The employee was terminated due to the incident with dd. The manager told us that.
TT, your posts are very interesting. I had dd email me exactly what happened a day or two after the incident. I consider that to be a timeline.
Quote
If dd were a different kind of kid with a less aware parent, she would not have been carrying an epi. Who knows what would have happened then.
I'd emphasize that with corporate. Well, not those exact words, but-- you know; the notion that less precise and aggressive management on YOUR parts could quite easily have led to a
fatal outcome, not just a family helping them to LEARN why they need to do better in handling allergen-info during ordering and service.
They should consider it a fairly cheap lesson. Whether they will or not is another matter.
Good luck! I agree, CM. I'm so glad your daughter is OK and sorry that you have such high expenses from this. Can't hurt to pursue it a bit further as you plan.
The doctor in the ER (major medical center) was floored that dd had an epipen on her. She said to dd "what do you do---carry an epipen every time you go to a restaurant?" Dd said she carries them everywhere in her purse. I had the impression that the doctor had never seen a teen patient with anaphylaxis who had an epi on her. We get a skewed view on this board as far as level of allergy awareness and precautions. I think most teens with a history of food allergies or anaphylaxis don`t carry epis.
Oy!