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.