6 common reasons for restaurant lawsuits

By A.J. Pyka

Restaurant owners come into contact with thousands of guests each year, and it’s likely that a guest may take legal action against them for reasons of varying degrees. While the possibility of being sued cannot be eliminated, owners can dramatically reduce the odds by paying attention and taking some basic steps to manage risk.

Here are the six most common reasons guests sue restaurant owners, and what owners can do to minimize their exposure.

1. Slip and falls: The National Restaurant Association confirms that slips and falls are the most common general liability claims made across the industry.

What you should do: To reduce the possibility of a slip-and-fall accident, first have a policy put in place. Having a written policy will go a long way in a trial to convince the jury that the business owner is concerned about the safety of his or her patrons. Be specific in this policy to cover routine spills by customers and employees, as well as any other reasons surfaces may dangerously become slippery. If you have a concern about any surface being too slippery or any other cause for a slip or fall, consider having it evaluated by an expert who will test the co-efficient of friction of your surface and advise as to whether or not it is within industry standards. If necessary, take action to eliminate the risk for a fall. 

2. Altercations between patrons: The second most common lawsuit filed against restaurants involves injuries that arise out of altercations with other patrons, especially when excessive alcohol consumption intensifies the situation. One of the most dangerous situations for restaurant owners is when two or more guests are asked to leave the premises because of a verbal altercation.

What you should do: First, don’t overserve guests. While overserving alcohol to adult patrons is no longer a basis of liability in California, it may still be used against a restaurant in a trial. Even though bartenders and management may not know how much alcohol a guest has consumed prior to arriving at their establishment, an intoxicated patron presents a high risk, and it is necessary to have a policy in place. Employees must have a procedure to follow when an altercation occurs so that time is not wasted figuring it out on the fly. Make sure the policy clearly indicates when the situation requires a call to the authorities. It is insufficient simply to require the guests to leave the premises and consider the incident no longer the responsibility of the restaurant. Industry standards now require that these potentially combative guests exit from different doors at different times. Additionally, it’s a good practice to have designated employees escort the guest not only to the door, but also outside to ensure the other combative guest is not lying in wait, while still on premises.

3. Altercations between employees and patrons: Fights between a guest and an employee are another fertile field for lawsuits.

What you should do: Some restaurants now have a completely “hands off” policy and will not touch a guest in any fashion. If a guest is asked to leave, but refuses to do so, the police are simply called. If employees are allowed to make physical contact with the guest, it is very important that they are trained in how to use only reasonable and necessary force, and to never escalate the use of force. Most of the time it is safer to seek the assistance of law enforcement. In these types of situations, the employment of security cameras throughout the restaurant will ultimately pay off when it comes to litigated matters. Again, a written policy specific to the business and the safety of staff and patrons should be implemented.

More scenarios to avoid

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4. Serving alcohol to an obviously intoxicated patron or minor: While a restaurant or bar is no longer liable for serving excessive amounts of alcohol to a patron, the establishment can still be liable for serving an obviously intoxicated patron or minor.

What you should do: Prevention is straightforward in this scenario, but does involve two basic measures. First, have a written policy about not over serving alcohol to intoxicated customers. Second, have a policy for I.D. checks that is strictly enforced.

5. Allowing unruly behavior by patrons: Owners will be sued if unruly guests are not controlled and end up injuring another guest. This frequently happens at nightclubs and bars that have a crowded dance floor where guests can become disruptive, often set off by a harmless brush.

What you should do: Again, written policies are very helpful in limiting your liability, which includes training employees on how to diffuse this situation safely. However, an important thing to keep in mind is that once you a written policy has been set, it must be followed to the letter, or it could be held against the owner in a trial.

6. Food poisoning or foreign substances in food: The good news is, lawsuits arising out of food poisoning and foreign substances are less frequent than any of the above-mentioned type lawsuits. While most restaurants do quite well in minimizing their exposure to these two risks, they can happen even to the tidiest of places.

What you should do: Make sure written materials regarding proper training and sanitation practices are followed, and the establishment is compliant with health and sanitation requirements in the area. Document how these guidelines are followed; and be prepared to show that the location and staff have passed necessary inspections, if necessary. Taking great care in controlling the quality and safety of the food served will minimize exposure in these areas.

Every restaurant should have general liability insurance to cover not only a possible loss, but the high cost of hiring attorneys when defense is needed. All the prevention in the world doesn’t protect restaurant owners from ever being sued, but following these practices will greatly reduce the risk. Reducing risk will ultimately improve the establishment’s “loss record,” which could lessen the cost of insurance premiums. All of the above measures may seem like common sense, but accurately documenting and enforcing these practices will help diminish your chances of being sued.

A.J. Pyka is managing partner of Pyka Lenhardt Schnaider Zell, an Orange County, CA-based law firm. For more than forty years, the partners of PLSZ have been serving the legal needs of individuals, public entities, private business and the insurance industry; representing national, regional and local clients in California and Arizona.