Question: You hang your jacket on a restaurant's unattended coat rack and it's stolen. Is the restaurant liable?
Question: You hand your new jacket to the coat-check person. Bad luck again; your cost is lost. Is the restaurant liable?
When you hang your coat on an unattended coat rack -- whether or not there's a warning sign -- a "bailment" (handing over possession or control of your property) has not occurred.
In the second case, the property your coat has been surrendered to the physical custody of the restaurant. You've created a "bailment." The restaurant is responsible.
There's more to eating out than deciphering a French or Chinese menu. There's legalese.
Whether a stolen coat, a bug in your bouillabaisse or too-rare roast beef, when it comes to who's right and who has what rights in a restaurant -- you or the restaurateur -- the answers are as unpredictable as ordering soup du jour.
Most restaurant episodes never reach the courts; for both sides, legal action may cost more in fees than it's worth. "No one's going to file suit for the price of a meal," said Frank Martel, a local insurance defense attorney.
Because restaurant controversies don't cram the casebooks, it's hard to go by precedents. "A lot is so gray," said Mike Blaher, a staff attorney with the District's consumer protection office.
More likely your day-to-day rights in restaurants are the stuff of house policies, judgment calls and legal discussion. Remember, though, every bone in a fillet of sole is different; each case has its own set of circumstances, every jurisdiction its own interpretations. There's always another side. You do have certain protections, but so do restaurants. Witness the following:
The valet gets a parking ticket while parking your car. Who pays?
You're responsible to the department of transportation, but you can hold the restaurant responsible for the ticket. "It's not good enough to walk into trafficcourt and say 'I didn't do it,' " said Blaher.
In a mood to experiment, you decide to order the grilled shark. After you taste it, you wish you hadn't ventured past trout amandine. Can you send it back and expect the dish to be replaced?
Legally, a restaurant does not have to replace a dish just because you don't like it. But many restaurateurs feel that a satisfied customer and a good reputation are more important than the price of a dish. "Good meals you tend to forget; bad meals you don't," said Bobby Abbo, owner of the Roma restaurant. "The idea is to get people to come in the door, not out."
Then there's the problem of not receiving what you ordered, such as the case of a medium-rare sirloin arriving on your plate instead of a rare one. In that kind of circumstance, said Blaher, you should be able to send it back. "They the restaurant breached the warranty for reasonable care."
The same goes for bad bottles of wine. Sometimes, though, that judgment may be a subjective one, said Suzanne Reifers, owner of Suzanne's restaurant and wine bar. The sommelier may take back a perfectly good bottle of wine and offer the patron another choice to maintain good will, then sell the opened wine by the glass at the bar.
Local restaurateurs say that while many patrons are bashful about sending back food ("they just don't come back," said Bill Timberlake), others are habitual complainers. Eating three-quarters of an entree and then saying there's something wrong with it is a common scam for a free meal, or a second meal. "If they eat everything and complain, then you're in a ticklish situation," said Roma's Abbo. "If it was so bad, why did they eat it?"
Jostling her way toward the table with a tray of screwdrivers and draft beers, the waitress loses her balance and you lose a dry shirt. Who pays the cleaning bill?
The restaurant, most often, depending on the circumstances. "If you stick your foot out and trip the waiter, then they're not liable," said Blaher.
Ladling your spoon through a pearly crab bisque, you spot an uninvited guest. He's heard it before, but you tell the waiter there's a fly in your soup. A charge for the soup appears on the check. Do you have to pay for it?
"If you order something inedible, then you should not have to pay for it," said Martel. "If a restaurant requires you to pay for it, they are making a big mistake," said John Cockrell, executive director of the Restaurant Association of Metropolitan Washington.
Sounds clear enough, as long as the restaurant accepts responsibility. What about when it doesn't? Restaurateurs have to watch out, said Martel, for those who bring their own uninvited guests to the restaurant, the "I'm gonna find the cockroach under the last piece of lettuce on my plate" sort.
Cockrell said restaurants have two ways of handling customer complaints that they believe are fakes. Some go along for the sake of good public relations, he said, but "several restaurants say they are not going to let patrons get away with it," he said.
At the Iron Gate Inn, manager Charles Saah said a customer found a Coke bottle top in his drink. The restaurant didn't stock Coke with bottle tops, Saah said, but he gave the customer a free drink anyway. And then there are those restaurants that won't go along: A patron at Nora restaurant last year who reported finding a piece of brown glass in his rice was told that there was no glass that color in the kitchen.
Kung pao chicken could become a staple on your diet, except for an annoying allergy to MSG. Explaining this to the waiter, you ask him to hold the MSG. He agrees. The kung pao chicken doesn't agree with you, though, and you have a MSG reaction. Is the restaurant responsible?
Yes, said Demetri Millios, a local attorney whose clients include a couple hundred restaurateurs. "In my opinion, you didn't get what you paid for."
A 15 percent gratuity is added to your bill. It's not written on the menu or posted anywhere in the restaurant. Do you have to pay it? Or perhaps the menu says "a 15 percent gratuity will be added to your bill," but you feel the slipshod service only deserves 10 percent. Do you have to go with 15?
"The key is notice," said Blaher. Under his interpretation of D.C.'s Consumer Protection Procedures Act, a restaurant "cannot charge gratuity unless it's on the menu or somewhere in the restaurant."
No cases have ever reached the appellate level in the second situation, said Blaher, so the answer gets a bit fuzzy. But he thinks the restaurant could hold you to it because it's an advertised cost that you knew about when you agreed to purchase food. "If you didn't want to be locked into paying the gratuity, you could get up and leave -- like if you thought the prices were too high or you didn't like anything on the menu."
You order a martini and break your tooth on an unseen olive pit. Is the restaurant responsible?
This case was actually tried in the District of Columbia in 1970. In Hochsburg v. O'Donnell's Restaurant, Inc. (272 A.2d 846), a man saw a hole in the olive in his vodka martini, and, assuming the pit had been removed, bit into it. The pit, in fact, had not been removed, and he damaged his tooth. The trial judge ruled in favor of the restaurant, holding that "there was no breach of implied warranty on the part of the restaurant because the object in the food was 'natural' to the food served."
The injured patron appealed, and the appellate court ordered a new trial, giving as its reason: "Because a substance is natural to a product in one stage of preparation does not mean necessarily that it will reasonably be anticipated by the consumer in the final product served." The court went on, "It is a different matter if one is injured by a bone while eating a chicken leg or a steak or a whole baked fish. There, it may well be held as a matter of law that the consumer should reasonably expect to find a bone."
What about choking on a bone while eating an order of fillet of fish? Should the diner have anticipated it? According to Blaher, this depends on several variables: 1) whether there is a presumption there may be small bones, 2) the kind of fish and the size of the bone ("a halibut steak has a big bone in the center; in cod you might find little bones"), and 3) the type of restaurant ("if it were your neighborhood greasy spoon that fries fish, it may not be as careful as The Fishery or Le Lion d'Or, which are somewhat higher priced").
A side salad for $2.75 is all you feel like having for lunch, but the waiter tells you there's a $3.50 minimum charge. Can the restaurant do that?
A restaurant may impose minimums as long as they are printed on the menu or posted conspicuously.
What if you can't pay the bill?
"They can have you arrested or they can sue you. It's obtaining something under false pretense," said Mallios.
Many times, restaurateurs will ask patrons to leave as collateral a belonging such as an I.D. But, said Timberlake, sometimes when a person leaves an I.D., "it's probably not theirs." It can become a judgment call. "The guy may have a $250 coat and not four dollars," said Timberlake.
You've had a few drinks too many. Can a restaurateur refuse to serve you another alcoholic beverage?
Yes. It's against local laws to serve alcohol to an inebriated patron.
The coffee and company are pleasant and you've been chatting past dessert for about 10 minutes, which you think is a reasonable amount of time for lingering. Politely, the maitre d' explains that another party is waiting for your table and you must leave. Must you?
This one is tough to answer; most of the discussion seems to hinge on what constitutes a "reasonable amount of time." According to the legal encyclopedia, American Jurisprudence, a "guest has the right to remain there a reasonable time if behaves himself peaceably and properly and pays the amount charged for his entertainment."
On the restaurateur's side, Cockrell of Washington's restaurant association believes that the restaurant is justified in asking patrons to leave if they are using the restaurant for something else, like a meeting. "People who overstay have gotten caught up and don't realize it, or else they're not thinking in the right way about the rights of the restaurant man."
On the diner's side, Blaher said that the diner "contracted to have dinner, with no time limit." But, said Blaher, it's the restaurateur's property, and he may ask you to leave.
Bill Timberlake has a system for chatterers. "I don't get crazy on 'em," he said; if they won't leave, he'll just leave them there or else "clear away what they're playing with" -- the salt and pepper shakers, the ashtray.
Can a restaurateur ask you to leave the premises if you're acting inappropriately?
As long as he is not violating the D.C. Human Rights Act (discrimination based on such things as race, sex, creed, religion), he can ask you to leave, as well as refuse you entry.
It happened to Roma's Abbo once; he asked a couple to leave when their domestic argument turned into a plate-throwing episode.
Legalities aside, when faced with a problem in a restaurant, ask for the manager or owner. "One mistake patrons make is talking to the waiter," said Cockrell. The waiter, he warns, may be protecting himself.
If you have a valid complaint, there are always the local consumer protection agencies and health departments. Keep in mind that health departments handle foodborne illnesses, truth-in-menu issues and improper facilities. Consumer protection agencies deal with business-related problems--credit card mishaps, incorrect checks and the like.
At the very least, don't patronize the restaurant again. "They diners can leave. They can never come back. They can tell people it's lousy," said Millios.