Tapped Out: Man Served Toxic Beer, Triumphs Over Finger-Pointing Defendants

Michael GrossmanSeptember 22, 2017 4 minutes

Just about any business will try to deflect the blame for an accident wherever else it can manage. Here on the blog I mostly talk about it in relation to trucking firms and their insurers, but it's certainly not limited to the transportation industry. Nobody wants to be the bad guy, especially if it means jacked-up insurance rates or expensive settlements in court.

We got wind recently of a pretty nasty case out of New Jersey in which a gambler at a casino was served a toxic drink, and it seems the responsible parties are part of the grand tradition of denial and finger-pointing so often employed by corporate defendants.

Here's What We Know.

The incident in question actually happened several years ago, but the case's recent resolution in court brought it back to the headlines recently.

In November of 2012, New Jersey man Richard Washart decided to spend some time at Harrah's Casino in Atlantic City. While gambling there he developed a bit of a thirst; anyone who has spent time in a casino knows that gambling and drinking go hand-in-hand. In fact, casinos tend to encourage the latter as it promotes the former.

Mr. Washart, a former police lieutenant, was served a draft of Samuel Adams Winter Lager at McCormick & Schmick's Seafood and Steaks restaurant in Harrah's. Upon his first gulp of the drink, he immediately felt burning pain in his throat. He ran to the restaurant's bathroom and endured no less than six rounds of projectile vomiting as his body tried to reject the tainted beer (no snarky jokes about the quality of Sam Adams, please). Washart tried to drink water from the bathroom's faucet, but couldn't force any down due to the burning in his mouth and esophagus.

When he began to vomit blood he knew he had to go quickly to a hospital. During his six-day stay, a doctor told him he'd never seen a patient survive with such serious burns to the throat and stomach. It was eventually estimated that the toxic material eroded roughly 25% of Washart's stomach lining.

Unsurprisingly, a Lawsuit Followed.

After recovering, Washart sued McCormick & Schmick's for his injuries, and who could blame him? In Richard Washart v. McCormick & Schmick's and Kramer Beverage Co. (case no. ATL-L-5789-13), the plaintiff claimed that the beer he was served contained elements of a caustic and highly toxic chemical used to clean beer tap lines. The suit alleged negligence, violations of the New Jersey Products Liability Act and breach of implied warranty for the failure to detect and remove the toxic chemicals.

Both Washart and the restaurant laid the bulk of the blame on its beer supplier and service contractor, Kramer Beverage Company. Best practices in the beverage industry included cleaning the lines every two weeks and then flushing them with water for 15 straight minutes to eliminate all traces of the cleaning solvent. After the water, pH strips should be used to test for any lingering chemicals. The suit alleged that Kramer Co. only cleaned the lines bi-monthly, flushed them with water for a mere two minutes, and didn't use pH strips at all. Kramer also denied having sent cleaning technicians to the restaurant near the date of the incident; it was hard to credit that claim when it was found they had destroyed records about their contract with McCormick & Schmick's.

The trial dragged on for several years as both defendants tried to put the bulk of the blame onto one another, denying their own culpability in serving acid to a thirsty gambler. Several settlement offers were made, but the plaintiff was not interested in being paid to go away. In the end, a jury awarded Mr. Washart $750,000 for his injuries--$650,000 for pain and suffering and another $100k for emotional distress. It was determined that each defendant would pay half of the award.

Almost No One is Found 100% Liable in Civil Cases.

Life would be much easier if every conflict could be resolved by unequivocally blaming a single party--some iconic James Bond villain hellbent on stealing the world's oil and blowing up famous landmarks. Unfortunately, most conflicts are smaller-scale and far more nuanced, and they have to be unpacked more carefully to determine who may deserve the blame. When defendants err through negligence they should compensate those they may have injured, but the legal system isn't usually trying to say they are solely responsible--only that they're the most liable out of all possible candidates. For instance, if two cars crash in an intersection because one driver was drunk and the other one didn't notice the sign, both parties could be considered partially responsible for any resultant injuries. It would fall to a jury to determine which of the two (probably the drunk one) had the lion's share of the blame.

That's sort of what happened in Washart v. McCormick; both parties insisted that the other was truly to blame for the customer's injuries after he took a swig of tainted beer. Washart's own complaint was primarily leveled at Kramer Beverage, since the toxic solvent was most likely applied by the firm during a beer-system cleaning. However, his attorney also argued that McCormick & Schmick's service of the beer violated New Jersey statutes related to "adulterated" food and drinks:

NJ Rev Stat § 24:5-1 (2013)
No person shall distribute or sell, or manufacture for distribution or sale, or have in his possession with intent to distribute or sell, any food, drug, cosmetic or device which under any of the provisions of this subtitle is adulterated or misbranded.

It was argued that the restaurant had violated this consumer protection statute by serving Mr. Washart the toxic beverage. It's likely they were unaware there was still toxic material in the system, but as owners of the beer equipment they did have a responsibility to ensure that it was in working order before serving customers any drinks from it. Given that the jury held the restaurant equally responsible for the plaintiff's injuries, it seems they agreed.

What Do We Learn From This?

If a company faces possible penalties for negligence, you can bet they'll contest the allegations as hotly as possible. Big-name restaurants, especially those owned by even larger firms (McCormick & Schmick's is owned by Landry's Inc., a restaurant conglomerate responsible for several other famous eateries), have the resources to argue against injury claims in court. Because their reputation and profits are at stake, they'll often fight tooth and nail to avoid liability, blaming their contractors (though it seems Kramer may have earned this attention) or in some cases the customers themselves for sustained damages. Nobody tried to paint Mr. Washart as negligent in this situation, but plaintiffs aren't always so fortunate.

The important point to make is that nobody's allowed to squirm out of responsibility in the name of saving public face. It may be instinctive or self-preservation or prudent business practice to try and pass the buck, but the law is seldom fooled by these misdirections. Truth will out, as they say. In the meantime, I'll take a personal lesson from this and sip my beer before I take a gulp.