Can I sue a restaurant for choking on a bay leaf? 4 Answers as of February 23, 2012

I recently choked on a bay leaf at a restaurant. I went to emergency room and they performed endoscopy, retrieving the leaf. There is no permanent damage, however I'm stuck with medical bill. Can I sue the restaurant for medical bills and pain and suffering?

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Lutwin & Lutwin, LLP | Joel M. Lutwin
Yes- but i would do it in small claims court
Answer Applies to: New York
Replied: 2/23/2012
Andrew T. Velonis, P.C.
Andrew T. Velonis, P.C. | Andrew Velonis
Although a formal lawsuit would probably not be worth pursuing, you may want to make a claim with their insurance company. It is pretty basic that bay leaves are to be removed prior to serving. Also, some business owners have what is called a medical payments provision of a liability insurance policy. The insurance people call this "med-pay". It is not required, but if the restaurant has that coverage, the company will pay for medical expenses (usually with a very small limit) regardless of fault.
Answer Applies to: New York
Replied: 2/23/2012
Dwyer, Black & Lyle, LLP
Dwyer, Black & Lyle, LLP | Kevin Habberfield
You have no health insurance coverage at all? If any insurance, submit the bill to them and be done with it. What is your theory of recovery? What did the restaurant do wrongly? It's possible the restaurant has medical payments coverage that would cover your medical bill, assuming no insurance at all, otherwise I'm not sure what you would argue the restaurant did wrongly and I don't see much pain and suffering. Obviously an endoscopy isn't fun but, the restaurant would claim, and many would agree, that all you had to do was chew your food to avoid this. Choking is a risk of eating. I don't see how this is the restaurants fault but, someone else may disagree. Good luck.
Answer Applies to: New York
Replied: 2/23/2012
Bruce Plesser | Bruce Plesser
You can sue anyone for anything but I don't see how a bay leaf in a meal is negligent. In simple terms, negligence is a failure to recognize a duty of care to another person.
Answer Applies to: Florida
Replied: 2/23/2012
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