Is an Employer Liable for Its Employee’s Crazy Dare with a Customer?
A plaintiff sued a restaurant for injuries he sustained when he stuck his hand in a pitcher of liquid nitrogen after an employee offered to pay his dinner bill if he could hold his hand in the liquid nitrogen for more than three seconds. The plaintiff asserted claims including premises liability, negligent training, and respondeat superior.
Background
On the evening of March 2, 2016, the plaintiff and his friend met at the restaurant for dinner. They ordered martinis prepared with liquid nitrogen which cools the drinks and causes a “smoke” effect when poured into the cocktail. A restaurant employee brought the drinks, along with a pitcher of liquid nitrogen, to their table. According to the plaintiff, he asked the employee what would happen if the liquid nitrogen was spilled on someone, and the employee said, “Nothing… it is just cold.” The employee claimed that he and other employees had stuck their hands in liquid nitrogen and that three seconds was the longest anyone had kept their hand in the liquid. The employee then offered to pay the plaintiff’s dinner bill if he could beat the three-second record. The plaintiff accepted the dare and submerged his right hand in the pitcher. He kept his hand in for four seconds, and the employee confirmed he’d pay their dinner bill.
The plaintiff went to the restroom to wash his hands and returned to finish his meal. About two hours after the incident, he went to the hospital because his hand was burning. He left that hospital and went to the burn center where he stayed for several days to get treatment for chemical burns to his hand.
Respondeat Superior
The restaurant asserted that the trial court erred in denying summary judgment on the plaintiff’s claim based on the doctrine of respondeat superior because the employee wasn’t acting within the scope of his employment and in furtherance of the restaurant’s business when he dared the plaintiff to put his hand in liquid nitrogen.
Presiding Judge Christopher J. McFadden of the Georgia Court of Appeals wrote that two elements must be present to render an employer liable for his employee’s actions under respondeat superior:
- The employee must be acting in furtherance of the employer’s business; and
- He or she must be acting within the scope of his or her employer’s business.
The judge explained that the question of whether an employee acted in furtherance of and within the scope of his employment is a jury determination—except in plain and indisputable cases. Summary judgment for the employer is appropriate when undisputed evidence demonstrates that the employee wasn’t engaged in furtherance of his employer’s business.
The material facts in the case were similar to those in Leo v. Waffle House (2009), the judge said. In that case, a Waffle House employee was “joking around” with customers; mixed a concoction containing several non-edible items, including dishwasher detergent; and offered a customer $5.00 to drink it. The customer accepted and drank the concoction. He suffered significant internal injuries. The customer sued Waffle House, and the trial court granted summary judgment in favor of Waffle House. The Court of Appeals affirmed, finding that the act in question “was not committed in furtherance of Waffle House’s business and [was] not within the scope of [the employee’s] employment.”
Likewise, here, the employee’s dare to the plaintiff was neither within the scope of his employment nor in furtherance of the restaurant’s business. Not only was there no evidence that the employee‘s duties included such conduct, but the evidence showed that the employee was specifically trained to never submerge anything in liquid nitrogen or let guests touch it. In fact, at his deposition, the employee acknowledged that he “obviously [ was] not trained to have customers stick their hands in liquid nitrogen” and no managers at the restaurant had ever told him to do so. He also said he had been trained to report any misuse of or injuries resulting from liquid nitrogen to his supervisors, but he failed to report the incident involving the plaintiff.
Judge McFadden found that the plaintiff couldn’t point to other evidence creating a triable issue as to whether the employee’s conduct was within the scope of his employment and in furtherance of the restaurant’s business. As a result, the undisputed evidence showed that the employee’s act wasn’t committed in furtherance of the restaurant’s business and not within the scope of the employee’s employment. As a consequence, the trial court’s denial of the motion was reversed on this claim.
Premises Liability
This concept imposes a duty to exercise ordinary care on a proprietor to keep his premises safe for invitees. An invitee must show that (i) the restaurant had actual or constructive knowledge of the hazard and (ii) the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner. However, there’s no duty to foresee dangers that aren’t reasonably expected and that wouldn’t happen but for unexpected acts. If a third party’s misconduct causes injury to a plaintiff while on the premises, the inquiry is whether the proprietor had superior knowledge of the danger that a third party would act that way.
Because the employee acted outside the scope of his employment when he dared the plaintiff to put his hand in liquid nitrogen, he was considered a third party for purposes of premises liability. Therefore, the inquiry was whether the restaurant had superior knowledge that the employee would engage in such conduct. Judge McFadden found that the restaurant had no such superior knowledge. There was no evidence of any prior incident of a customer putting a hand in liquid nitrogen, of the employee encouraging a customer to do so, or of any other restaurant employee allowing customers to make such deliberate contact with liquid nitrogen. Thus, the trial court erred in denying summary judgment on the premises liability claim.
Negligent Training
To establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury. The evidence showed that the employee was trained not to submerge anything in liquid nitrogen and not to let customers touch it. To that end, the employee and other employees were instructed in training materials that one of the restaurant’s main rules was to “never let guest[s] touch liquid nitrogen” and that such conduct could result in termination. The employee testified that during his training he learned the following:
- Liquid nitrogen has a temperature of 320 degrees below zero;
- No customers were allowed to handle the substance;
- It could cause burns; and
- He was to instruct customers not to drink liquid nitrogen cocktails until they quit smoking and bubbling.
While the plaintiff cited evidence of the restaurant employees mishandling liquid nitrogen and of an alleged incident when it spilled on a customer, he didn’t provide any evidence showing that the employee was negligently trained or had been instructed to disregard his express training by daring a customer to submerge his hand in liquid nitrogen. Because the plaintiff didn’t point to any evidence creating a genuine issue of material fact as to the adequacy of the training, the trial court erred in denying the restaurant’s motion on his negligent training claim.
Assumption of the Risk
The restaurant argued that the trial court erred in denying summary judgment based on the restaurant’s assertion of the affirmative defense of assumption of the risk. A defendant asserting an assumption of the risk defense must establish:
- The plaintiff had knowledge of the danger;
- He understood and appreciated the risks associated with such danger; and
- He voluntarily exposed himself to those risks.
Judge McFadden explained that the knowledge requirement doesn’t refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Whether an individual assumed the risk of his injury is an issue for the jury that shouldn’t be decided by a motion unless the defense was conclusively established by plain, palpable, and undisputed evidence. In assessing whether the defendant has met this burden, the court will apply a subjective standard geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence.
Here, the restaurant didn’t meet this burden because the evidence was conflicting as to what the plaintiff knew about the specific risk of harm of putting his hand in liquid nitrogen. While the employee testified that he typically warns customers about the dangers of liquid nitrogen and believed that he warned the plaintiff about these dangers, the plaintiff denied that the employee gave him any warning. There was also evidence that no warnings were posted at the restaurant informing customers about the dangers of liquid nitrogen.
The plaintiff testified that the first time he’d ever dealt with liquid nitrogen was at the restaurant, that he didn’t know putting his hand in it could burn him, and that he assumed it wasn’t dangerous based on what the employee had told him about it. Because the conflicting evidence created genuine issues of material fact about the plaintiff’s knowledge of the particular risk of harm associated with liquid nitrogen, the trial court didn’t err in denying summary judgment based on the restaurant’s assumption of the risk defense. As a result, the plaintiff’s action could move forward on this aspect of the complaint.
The judgment was affirmed in part and reversed in part. Friendship Enters. v. Hasty, 368 Ga. App. 7, 889 S.E.2d 137 (Ga. App. June 6, 2023).
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