If your tooth was broken in half from an olive pit that was supposed to be seedless, who is liable?

My daughter ate in a restaurant and her tooth was broken from the olive pit. The next day we called the restaurant about it after seeing her dentist because they said it would cost $1,200 to get it fixed. They thought it was the vendor’s fault and the vendor thinks it’s the restaurant’s fault. Who should pay? My daughter did leave the restaurant without complaining because she was embarrassed but did order some milk to put the tooth in.

Asked on September 4, 2011 under Personal Injury, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If the olive was supposed to be seedless, it is likely that the vendor would be liable, if he/she/it provided olives that should have had no pits or seeds but did. In essence, the vendor provided "defective" olives or mislabled the olives it was selling. It is also possible that the restaurant is liable, if they substituted or used the wrong olives--ones with pits--in the meal; i.e. if it was the restaurant which was careless and/or intententionally used the wrong olives.

If you are going to sue (which may be the only way to get compensation, if neither will voluntarily step up to pay), you should sue both of them--when more than one party may be liable, you can name all the potentially responsible parties. During the litigation, there will be an opportunity to develop information about who is more likely at fault, and/or to come to some settlement among the parties.

You should probably should pay for the meal, to avoid having that issue muddy the waters at all.


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