The law on shells in food

I made my appointment today for my second and third visits to an oral surgeon to finish the $3000 repair of my jaw. There's now a gaping whole where tooth number 19 used to be. I'm not complaining or naming names here but you tell me what's fair.

My long-suffering wife and I were dining at one of the higher-end, cutting edge restaurants in this fair city. I was eager to eat here, the chef was enormously welcoming and sent out three interesting small dishes in addition to all we were ordering. It was a lovely evening, a lively room, the LSW had cast off the stresses of her week and the kids and looked longingly at me across the table, I returning her limpid gaze as we savored the fine fare. We were practically cooing.

The server set down the fried oysters, four, each in a separate square dish, with a piquant sauce and some chiffonaded greenery. They were crisp on the outside and hot and organy inside, perfectly cooked and delicious. I bit down on the second one and drove a piece of shell like a chisel into a back molar, splitting it in two.

After a moment of waiting for any spine searing pain, I found the offending weapon (a circular piece of shell about a centimeter in diameter). When I eat a restaurant and am well-cared for, I feel like a guest. So I didn't want to be rude, but eating was now an impossibility and we'd need to be leaving. I told the server and showed her the shell, she showed the chef, who was profusely apologetic. On the way home, I called my dentist at home and he said he'd see me the following morning (a Sunday).

The tooth was a goner, Dentist said grimacing, and I was looking at a $3-4000 tab between him (above the gum) and the surgeon (below the gum). He then removed the loose half of the tooth, did something unspeakably awful-sounding to make sure I didn't wake in the night howling in pain (I think he called it a pulpectomy, using his drill to scramble the nerve like eggs), and sent me home, the left side of my face dragging on the parking lot blacktop.

The oral surgeon was no less fun ("Betty, I'm gonna need more bone graft in here!")

So, I called the chef, told him my little company of one didn't carry dental, could he ask his insurance to look into it. No problem, he said. Two weeks later his insurance lady called me back ("I've got bad new for you and bad news").

I was going to have to eat this one.

According an Ohio ruling, Mitchell v. TGIF, seventh district court of appeals, the restaurant would only be liable if it had been foreign matter in my juicy fried oyster, or if it was unreasonable to expect the substance. Glass, for instance. Shell is natural and expected, say the courts. As the ruling puts it: "under either foreign-natural test or reasonable expectation test, neither restaurant nor supplier had duty to protect patron from her injury." In Mitchell's case it was clam.

This really pisses me off. Maybe at a crap restaurant like Friday's you'd best take your life in your hands at every step–that may be a "reasonable expectation." But at a fine dining restaurant? My attorney friend, big Stu, said, "The law is not good on shells." Surely, I reasoned, the fine jurists of the seventh district could be persuaded that a fried oyster, golden brown on the outside and swooningly molten on the inside, when served at a fine-dining restaurant, cannot be reasonably expected to contain the very part of the oyster that would destroy the dish. The only reasonable expectation can be that it does NOT contain shell, otherwise it ceases to be a fried oyster that can be sold for $15. It would ruin the dish, not to mention the tooth. The cases big Stu cited for me (and there are several) are simply more reasons to be disenchanted with this country.

I've eaten at Masa in New York. This, though, will be at least five times what Masa cost, and will count as the most expensive of meal of my life.

And you know what's really galling? The chef charged me for the meal. Yes, he did take off the oysters, and the fancy pizza my wife had to carry home in a box because I was being a spoilsport and insisted on leaving early, but really, had I been in the chef's position? I'd have sent the guest home in a manner becoming an Oriental potentate. Havent heard from the guy since.

22 thoughts on “The law on shells in food

  1. Okay, I hate to be the first to ask – but I simply have to know what kind of restaurant would do that to a patron – and not just ANY patron (I mean, I personally would expect to be treated that way, but a renowned food writer? c’mon, that’s just asking for trouble). So, I’m asking here – what was the restaurant and chef in question? I’ll never eat there and will never be able to endorse such behaviour by any of the dining establishments I select.

  2. Sadly, there’s many in the industry that can not be accounted on to take care of their consumers. Typically, it seems, the market does a good job of washing these people out. Sorry to hear about your problems and the Chef and Restaurant handled the situation in a completely stupid way. I’m with Eric, dish out on the Chef and the Restaurant. It’s obvious they don’t know how to handle a problem, which begs the questions of what else is going wrong there.

  3. Is the proper shucking of oysters a dying art form? Actually NOT having a piece of a shell in in an oyster is something of a novelty these days.
    Needless to say, something similiar happened to me recently, my own tooth snapped in half when I chomped on a thick bar of quality dark chocolate. It never occurred me to try and sue them (I am European), but truth be told, I put the blame squarely on my (obviously pathetic) tooth.
    maybe your tooth was already weak? I have bitten on many oyster shells without a problem so far. Just another pov to look from.

  4. Yeah, Eric, let’s start a blog lynch mob against the restaurant. Great idea.
    Michael, do you, like, ever cook? Stuff happens. I miss fish bones in my fish stews all the time.
    I’m sure that shells in oysters are rare, and in most instances they don’t destroy a tooth. I’m trying to get my head around how you must have bit on the thing to take out a tooth. I’m not that vigorous when eating soft foods. Do your teeth make clicking sounds when you eat oatmeal?
    How about chilling out and not calling an attorney in every time life doesn’t go your way?

  5. Sonny, snarky much? Dude, get over yourself!
    I’m not talking about a lynch mob, I’m taking about taking a stand against deplorable service. The service (not) received and the chef who was obviously so callous as to not even TRY to make amends does NOT deserve my business or anyone else’s. What the hell is wrong with you getting all bent out of shape based on some comments made on a blog? You don’t know me, you OBVIOUSLY do not know Michael (nor do I for that matter), but its called C_O_M_P_A_S_S_I_O_N. Look it up.

  6. That does sound like a truly horrible experience. I recently broke half a tooth off while chomping on dry cereal (because that tooth was in bad shape) and had to get a crown. Very expensive and unpleasant. I think, woefully, these things do happen.
    My opinion is that the chef should pay for half, and I think that would be appropriate, even generous. He should also reimburse you for your meal (that is pretty tacky – mayeb an error of judgement at the moment). Perhaps he could use more grace, but IMHO I don’t think he’s liable.

  7. Yes, Eric, I think the chef was something of a knucklehead in the way he responded, but there it is.
    I’m not going to name the chef or the restaurant because, well, you just don’t do that. Running a restaurant is hard enough. And I’m certainly not, and never once considered, suing anyone. There’s too much of that shit going on today.
    What I wanted to know: Was the insurance company being really slippery? When a diner suffers and is out of pocket thousands of dollars because of something he ate at your restaurant, food you served him and intended to charge him for, should the diner have to pay? Isn’t this exactly what insurance is for? I didn’t want the restaurant to pay, I wanted the insurance to pay. I still think they should.
    But no. The insurance woman tittered with glee and waved Miitchell v. TGIF in my face, she thumbed her nose at me and farted in my general direction.

  8. jen, i agree, he’s not liable, and shouldn’t be; i don’t think he should have to pay anything, but again, in the interests of good business, i’d have put a little more effort into the customer satisfaction dept.

  9. Agreed. A little graciousness goes a long way in fostering bonhomie.
    I’m finally seeing your point about insurance companies. I wonder – do they pay for it if a customer is hospitalized from getting food poisoning at your restaurant?

  10. do they pay for it if a customer is hospitalized from getting food poisoning at your restaurant?
    That’s a good question, probably not unless you can clearly prove the food you eat at the restaurant made you ill. Food poisoning can start anytime from two to six hours after you’ve eaten, sometimes longer. So if you went out to eat for lunch, then ate at home for dinner, and then got sick sometime in the night, I bet the insurance company would try very hard to prove you made yourself sick at home.

  11. What about McDonald’s having to shell out money because of an customer’s stupidity? Coffee *is hot* (or at least damn well should be). But a fried oyster should not have shell. It’s not like you were eating steamed crabs and stabbed yourself with a claw while picking your teeth.
    I think the restaurant should have comped your meal. They’re lucky you aren’t the type of person to name names.
    I broke a tooth eating a piece of bread. Fortunately, I do have dental insurance. I feel for your wallet.

  12. How about a little personal responsibility and less whining?
    If you are going to eat foods like oysters, there is a chance that there is going to be bits of shell. And, short of running the oyster through a food processor to grind up any bits of shell, there is nothing at all that the restaurant could have done to preven this.
    On the other hand, if you had gone to a “crap restaurant” like Fridays and ordered, say, one of those nice big blooming fried onion things, this never would have happened.
    You pays your nickel and you takes your chances.

  13. tde, sure they could have prevented it. they could quickly check each oyster as they came in or before service, keep each portion in a ramekin ready to go, instead of assuming that they’re ready to go when they arrive in their gallon can…
    it’s not a heat-n-serve kind of restaurant though increasingly that’s the case even high end.

  14. Herewith a chef reaction, phone msg from Paul Minnillo, who read the shell story via Paul is one of the most respected chefs in town ( and has recently been bringing in some great cheese, some of the best cheese in the country, in fact:
    “Come on, Ruhlman, what are you a wimp?! You get a little piece of oyster in your mouth and crack your tooth?! Dude, I’m on my THIRD implant and they are 3500 bucks, each, And they’re all food related [laughter]… me it’s Minnillo, call me at work. Come and get some cheese, you can eat it on the right side of your mouth hahahahahaha [dissolving into laughter as he hangs up…]”

  15. It sounds like an absolutely awful time. I agree the chef should have comped your meal instead of just sending out other stuff instead – perhaps he thought you would be able to continue through the meal and was just trying to make it more pleasant if/while you were staying.
    But ever-so-gently I would like to suggest that nobody is perfect and as was pointed out by the lawyer friend of yours it is a naturally occurring part of the thing, akin to getting a bone in your fish. Everybody doesn’t have QC like the CIA or a Keller kitchen, there’s not the time, knowledge, manpower, patience, whatever. There are things in food that shouldn’t be in there all the time, whether naturally occurring or man-made and I think most respectable restaurants do their best to do everything right, but nobody’s perfect all the time.
    Pls don’t be upset by my saying this, but I do also wonder about why you don’t have dental insurance? Going out on a limb here, maybe you’re (understandably) mad that it happened and want someone to blame, but maybe you’re just mad at yourself because you didn’t have the insurance in place to pay for it? That being said, I know dental insurance doesn’t cover everything, and even if you’d had it, you might have ended up paying for a good bit of this out of pocket – which stinks. If you want to be mad at someone, be mad at the health care system that’s made things like this so unbelieveably expensive that when it happens to, say, the hostess who took your reservation or the guy that parked your car, they can go completely bankrupt trying to pay for something like this, or have to take out a high-risk loan that puts them behind the 8 ball for the next 5 years.

  16. Well to add a little restaurant perspective myself, when I worked at a restaurant often one of my prep tasks was to get oysters ready for service. We had pre-shucked oysters for our fried oyster app and we also did oysters on the half-shell. I went through each shucked oyster and felt it and inspected it to make sure it didn’t have any shell bits. Did some bits miss my inspection? Perhaps, but I have a hard time believing a piece large enough to do such damage upon biting did. When I shucked myself for the raw app, I always inspected to ensure no piece of shell got in there. I know that only one view, but I think it’s possible to make pretty damn sure you’re not selling shells to unsuspecting customers.

  17. I worked at a high-end restaurant a few years back and we had a customer who chipped her tooth on something she bit into in a salad. The manager immediately told her that the restaurant would pay the bill and not to worry about it.
    As she was leaving, she admitted that she had already broken her tooth and lied, but felt so bad about it because the people at the restaurant were so nice and handled the situation so well, that she just couldn’t go through with it.
    …on a similar note, I cracked a filling last week, biting into a stone that was in a chicken that I bought from my butcher. I didn’t wash the chicken first (the new FDA regs say not to) but if I had, the pebble would have likely plinked out into my sink. Fortunately I live abroad and my new crown cost only $175.
    Hmmm. If they won’t pay for a new crown, maybe they’ll pay your airfare to somewhere more cost-effective? (And I would continue to press the case with the restaurant’s insurance company. It was clearly a mishap and that’s what’s why restaurants have insurance.)

  18. thanks for that interesting story, david–humans are funny creatures. and thanks also for suggesting the restaurant press its insurance co.
    in fact, i’m told that’s happening. when my megnut post showed up on a cleveland food forum, it found its way to the chef in question, who was duely mortified. he called immediately, saying he completely dropped the ball on this, out of nerves and general ham-handedness. he insisted on sending a check for the bill (thanks but that’s ok), on helping with the dental bill (again, thanks but that’s not really appropriate either at this point), and contacting his insurance co (yes, that’s the ticket, please do). michael symon had called me and said when a customer chipped a tooth on an oyster on the half shell and admitted it was his fault, insurance covered it. i’m eager to see if the slippery insurance lady will pony up.

  19. How has this lovely land-of-the-free country deteriorated so much that we have to think about suing every single damn time something doesn’t go your way? Look. People make mistakes. We are all human. We can’t be perfect. 1 oyster shell out of hundreds of oysters some poor guy shucked.
    Whats next? Sue a restaurant because you had diarrhea?? Do you know what this will do to the restaurant industry? Think about it. Restaurants will go out of business. Only ones left will be big chains who can afford expensive insurance and lawyers. So we are stuck with Applebees and guess what Michael, you will be complaining “where are all the restaurants?”
    Shit happens. Its part of life.

  20. He’s not suing – he’s asking that the restaurant’s insurance, WHICH EXISTS FOR THESE SORTS OF SITUATIONS, cover the bill.

  21. I don’t spend lots of time in seriously high-end restaurants, but from my limited experience, this is wrong on so many levels. Especially the “expect the shell” folks. If the oyster(s) cost 15 bucks, they really should be fresh and just shucked (and from local waters) and they’d better not have shells!
    Being from a seriies of beach towns, I’ve been eating seafood my entire life and I can’t recall encountering anything likely to break a tooth in a restaurant meal. The one time I cut my gum on a bit of crab shell, the entire table of six got comped and they followed up with a call and another dinner for two. And this was at a small town place that was running on a much tighter margin than the upscale big city places one might generally encounter and I wasn’t a local.
    One might wonder what the protection money…oops, I mean *insurance* is for if they refuse to pay for the standard sort of accidents one might expect in the type of business for which they issued the policy. Because, really, if a restaurant can’t count on their insurance to come through for food-related injuries, what’s the point of paying the protect…umm, premums…?
    David L., I just had a crown done and now you tell me I could have flown to Paris, had it done, and still saved over what I paid? (yeah, I would have had to stay awhiile, but how bad could that be?)

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