Legal Question in Product Liability in Texas

My dear son almost swallowed a pill at a restaurant, what do I do?

We go to this restaurant called Don Jose's in Waxahachie Tx (20 mins from Dallas). My fiancee sits down in a chair covered with some sort of soda and the floor is also sticky. We complain and get new chairs and a half hearted apology. Then our food comes (they split two cheese enchiladas) and both my son and my fiancee get food poisening from it later (btw she is also pregnant!). But here is the kicker. As we're about to leave my son (2 years 9 and a half months) goes down to the ground to pick up his sandals and sees what he thinks is candy. He is about to put this pill in his mouth (which we later find out was a very strong 150 mg dose of an anti depressant which he would have had to have his stomach pumped for). Luckily being the good dad that i am :) i pry it from him. I spoke to the owner of the restaurant and he said basically that, ''Oh these things happen, we can't be expected to be responsible for our customers... people eat here a lot, its a tiny pill he would have been ok.'' I have already started a dialogue with the Ellis County Department of Health, but i would like to know whether or not i can roast this pompous son-of-a-gun in court. He didnt even apologize. thanks in advance from our whole family.


Asked on 5/18/06, 10:19 am

1 Answer from Attorneys
Dan Street Street Law Firm

Re: My dear son almost swallowed a pill at a restaurant, what do I do?

As a personal injury attorney, I get asked questions like this a lot. Basically, you want to know what kind of damages you are entitled to for what ALMOST happened. Unfortunately, while I can certainly understand the sentiment, you cannot be awarded damages for what MIGHT have happened, only for what DID happen. Since the child did not ingest the pill, there was no damage done and the restaurant would owe you no damages. As to the "food poisoning," these cases almost always result in very minor damage (an upset stomach for a few hours) and are thus also not worth much in damages. Compensation is based upon the damage done. If you paralyse someone because of your negligence, you owe them a great deal of damages. If you merely inconvenience them (or, in this case, give them an unpleasant dining experience), it is doubtful you owe them any damages at all.

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Answered on 5/18/06, 11:24 am


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