I was reading lee’s thread about cocktails in the Cafe when I stumbled across this post.
I was pretty offended for teela brown, but also pretty horrified that a bartender would do something like that. I was horrified because I’m pretty allergic to juniper, and so gin is really right out for me. I always check the list of ingredients if I’m picking a new drink*, but if there is no list, I’ll stick to something easy and safe.
So, what if a bartender pulled the same trick on me, but I was served a drink containing gin? Would he be charged with anything if I only got a little sick? What about if I were hospitalized? Worst case scenario, what if I died?
I consulted my friend Basandre, and she guessed reckless endangerment. I guessed criminal negligence** if I got really sick and involuntary manslaughter if I died. But, since neither of us has so much as a “Law & Order” education, we decided to ask here.
*I actually don’t drink anymore, but if I said that there’d be no thread.
**Is this even a formal name for a crime, or did I just think I heard it was one once?
Interesting question. If you died it might be involuntary manslaughter – one of the ways a homicide can qualify for that category is if there’s a battery which leads to death, even if the battery wasn’t meant to kill or even cause any significant harm. So is pouring the wrong drink a battery? I think it’s not.
A battery is an unwanted touching. However, when evaluating whether a touching is a battery, you ask would the touching be offensive to the average reasonbable person. A person is not to be charged with knowing every single person’s idosyncracies, e.g., which people can be tapped on the shoulder and which would freak out. If the touching is something the reasonable person wouldn’t find offensive, it’s not battery, even if the particular victim of the touch was gravely harmed thereby. I think while getting gin when you didn’t want it might be annoying to the average reasonable person, it wouldn’t be so offensive as to qualify for a battery.
Now, you (or rather your estate) could sue the bartender (and most likely, the bar as well) in a a civil suit for money damages and I’d say you had a decent shot. Mis-mixing is possibly negligent, and the cost of taking precautions is very low (namely, the bartender saying “Hey dude, gin OK?”), so he’d be civilly liable for your injuries in tort, but in my wild-ass, shoot-from-the-hip, completely unlearned opinion, I don’t see a crime here.
Of course, this is all under the common law in the U.S. Other countries may have totally different legal schemes, and indeed, many states may have legislated specific duties of bartenders that they can’t do this stuff or they might be criminally liable. I wouldn’t be terribly surprised if that’s happened somewhere, as places that serve alcohol might be very tightly regulated because alcohol can be so dangerous, and also because they make convenient political targets. So YMMV.
Of course, now watch Bricker or someone else with real criminal experience come in and tell me I’ve got it all wrong.
Thank you Cliffy. A non lawyer friend guessed the same thing when he saw the thread. I guess I’m just confused about the reasonable in this case. I would assume a reasonable person wouldn’t accept “I just looked up a tropical sounding drink and made that.” Granted, I wouldn’t expect a reasonable bartender to do that, so it’s probably unimportant.
The question is not whether the reasonable person would accept a mis-poured drink, but whether he’d find it so offensive as to arise to the level of battery. IMO, it isn’t, the same as brushing past someone on a crowded sidewalk might be really annoying, but not battery.
I spoke to some cops about this. They agreed that, if called to the bar and the patron hadn’t died, they wouldn’t arrest the bartender for anything. He had no intent to cause harm, you see. It’s all in the mental state.
I dunno… We’re not talking about a dislike of gin here, we’re talking about an allergy. Regardless of how reasonable BlueKangaroo is, if someone serves him gin, he’s going to be gasping for breath. And any reasonable person would conclude that a person being asphyxiated is suffering serious offense.
Her, but you have no way to know that from the OP.
From an insurance standpoint (former commercial p&c broker here), it would be negligence. Law dictionary defines this as “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.” Negligence is different from an intentional act. A prudent and reasonable person - professional bartender - wouldn’t switch out drinks without telling the customer.
BK, I promise to never feed you gin. The stuff tastes like dishwater anyway.
I’m sorry, I forgot to include my cite: Law.com. I originally quoted from Black’s from memory, but could not find it online in my exhaustive 20-second search.
