THIS WEEK IN TORTS

Imagine, if you will, a tea party. Not a Boston Tea Party, or a political Tea Party, but a good old-fashioned, civilized tea party. It is a meeting of friends and unstated enemies over tea, crumpets, and jam. The scene is a stately manor in the hills of Northumberland. In attendance are all the ladies of high society, dressed in their Sunday best despite it being Wednesday. Yes, this is a party of the landed gentry, a place to gossip, a place judge, and a place to stab one another in the back. The room is immaculate and the walls are covered with lustrous green wallpaper and gilded gold trim. Servants wait in attendance to answer the ladies’ every need, overseen by their leader, the butler. He stands along the green wall like a statue, observing but not listening to the scandals of the day.

Unfortunately, the butler does not have many days left to observe, because he is being poisoned. And he will die a very unpleasant death soon enough. The local doctor will rule the cause of death as an unusually bad case of gastroenteritis. As I said, an unpleasant death. And so the question we must all ask is, who killed the butler? Did he hear something he wasn’t supposed to hear? Were there upstairs/downstairs issues at play? Or was there perhaps something amiss with his staff? Later analysis will reveal that the butler did not have a contagious gastroenteritis but instead was the victim of a long-term poisoning by arsenic. Neither the ladies of the room nor the house staff will be implicated, except perhaps for the interior designer, because it turns out that the butler was poisoned by the green wallpaper that rubbed against his clothes hour after hour, day after day. How on earth could the wallpaper be the culprit, you ask? Because the dye used to color that wallpaper green was infused with arsenic.

This may sound more fantastical than the notion that one of the guests poisoned the butler, but this was a real scenario. Green wallpaper in the 19th century was, in fact, largely made with arsenic. The off-gassing of that arsenic literally and actually killed people. And it was not just green wallpaper that arsenically poisoned people in the 19th century, as the heavy metal was used in a wide variety of everyday products. Products such as fabric, makeup, cardboard boxes, candles, oil paint, venetian blinds, soap, etc etc etc (a list from the Poisoner’s Handbook, by Deborah Bloom!) all contained arsenic.

It wasn't that the Victorians thought that arsenic was harmless, as evidenced by this cartoon from the humor publication Punch. But producers of arsenical green dyes insisted, convincingly to many, that the product was safe if not ingested. William Morris, the namesake of arsenical wallpaper company Morris & Co, proclaimed that any allegation that arsenical products were dangerous was just rampant scaremongering. As he wrote to a friend in 1885, the “doctors were bitten as people were bitten by the witch fever.”

The history of business is littered with quotes just like this, from executives and others with a financial stake in something secretly dangerous. And statements like this surely have contributed to countless deaths and other maladies. We have always been surrounded by things that will do us ill, things that we would surely do without if we only knew of the dangers that lurk within. Torts, and products liability law in particular, can play a pivotal role in exposing the true nature of that which we think of as safe.

Perhaps the best-known example of this is asbestos. Asbestos is an unusual product, a fibrous mineral that was widely used as a flame retardant, insulator, and other building material for a very long time. If you’ve watched television in the middle of a weekday, you’ve probably heard ads from questionable law firms pointing out that asbestos exposure causes mesothelioma, a very unpleasant and deadly cancer. And just like with arsenical wallpaper, asbestos producers proclaimed that any evidence that their product was dangerous was flawed.

I actually once had the good fortune of visiting the town Asbestos, Quebec, home of one of the world’s largest asbestos mines. It was a bizarre place where it felt almost like the inhabitants had never heard about the asbestos/cancer link. The town was so out of sync, in fact, that Comedy Central’s the Daily Show once did a segment interviewing/mocking the mayor as he tried to defend the town’s namesake product. It turns out that despite being largely banned in Canada, the town’s mine was exporting asbestos to other countries, like India, that still allow the use of asbestos in building projects. Thankfully a shift in power between political parties in 2012 caused the Quebec government to cancel a $58 million loan to revive the asbestos industry and instead pledged to help the mining community diversify its economy. It is amazing that, despite our now-longstanding knowledge that asbestos is deadly, the mine in Quebec only closed in the last few years.

Both the asbestos and arsenical wallpaper examples make me seriously question what products that are common in our 2017 lives will someday be revealed to be horribly dangerous. It is inevitable, isn’t it? Every once in awhile we hear unverifiable concerns about the dangers of cell phones, but I suspect the toxin of our lives will be something we never saw coming. Maybe it’s in the water we drink, or the bottles we drink it from. Maybe it’s in our mass-produced clothing, or in an additive in all of our toothpaste. The likelihood is that there are almost certainly MANY things that we see as safe that are in fact dangerous. And just like arsenical wallpaper and asbestos, the manufacturers and distributors of those goods will likely have advanced warning about the threats they are peddling. But the threats to their bottom line will likely keep it under wraps until some bold plaintiff will bring a tort suit and unravel the whole thing.

-Ellis and Acton

About a decade ago I was having a meal at a Cambridge diner with my roommate, who we will call Walter. Walter was born and bred in Europe and commented that the United States does not seem to have any original food. Everything, he argued, was derivative. I tried to argue, but the diner food on the menu was not helping my cause. Chicken Parm. Lamb kebobs. Gyro with Pita. You get the picture.

Several years later Walter and I took a trip across the eastern half of the United States, and one of my stated purposes would be to show him that we have plenty of great, original food. We bought cheesesteaks in Philadelphia, pulled pork in North Carolina, and shrimp and grits in Charleston. The tail end of our trip was in Nashville, and I was on the lookout for more quintessentially American faire. That’s when I stumbled upon Nashville hot chicken.

As the name implies, Nashville hot chicken is just spicy fried chicken. But it’s not just a bit piquant. No, if you go to the true stalwarts of the specialty, you’ll find that the food is mind-numbingly spicy. So spicy, in fact, that it can and does make people physically ill. When we tried the “hot” level chicken at Bolton’s Spicy Chicken & Fish, it was so strong that Walter commented that it was barely food, but instead something like a dare. But honestly, what could be more American than that?

When we were ordering, I noticed that on the wall there was a sign alerting customers that they would issue no refunds under any circumstances. It was an ominous message, and one that made me think of the tort theory of assumption of risk. Basically, assumption of risk means that if you knowingly enter into an inherently dangerous activity, you cannot hold the provider of that activity responsible.

So might a person be assuming a risk when eating spicy food? As a baseline matter, it’s important to note that spicy food can, in fact, be dangerous. At low levels, capsaicin, the agent that makes food spicy, is very safe and can even have health benefits. But as one climbs the chart of spiciness---that’s actually a thing, and it’s called the Scoville scale--capsaicin can severely inflame membranes in the body and even lead to heart attack.

At spicy food-eating competitions, contestants regularly become physically ill. As a result, participants are almost always asked to sign waivers releasing contest-holders from liability should anything bad happen. For example, the Seven Deadly Wings Challenge in the UK requires participants to agree to the following:

“I understand that I will be eating chicken wings that are treated with the hottest ingredients … with an extreme degree of heat...I acknowledge that there could be a risk of personal injury, illness & possible loss of life, and risk of damage to or loss of personal property which may result from participating in this challenge. I confirm that I do not have a medical condition that could jeopardise my health or wellbeing during or after the challenge. I agree that I am taking on the challenge at my own risk and hereby certify that Huckleberry’s Bar and Grill Ltd, its employees or affiliates will not be held responsible or liable for any injuries, damage or loss of earnings caused during or after the challenge.”

Agreements like this certainly indicate that people offering and consuming ultra-spicy food know or should know that there is a risk to what they are about to undertake.

But what if a person consumes extremely spicy food without knowing what they’re getting themselves into? That was the case when a boy in Tennessee was hospitalized when his server gave him “Blair’s Mega Death” hot sauce when he requested hot sauce for his food. Blair’s Mega Death has a Scoville rating of 550,000. For comparison, Tabasco hot sauce is rated at around 2,500 Scoville Units. If the boy was expecting something on the order of Tabasco but instead consumed a sauce 200+ times more powerful, one would think he did not assume a risk. At that rating, it’s hard to see a distinction between hot sauce and poison. The server and the restaurant (based on vicarious liability) were sued by the child’s parents, and one would hope that they were able to find satisfaction and make the boy whole.

To some extent, it’s remarkable that there is a market for products like Blair’s Mega Death sauce. But it turns out that there are far spicier sauces on the market, with hotsauce.com selling several dozen sauces with Scoville ratings over 1,000,000 (and therefore at least twice as hot as Blair’s Mega Death). Whether it is due to thrill-seeking or some variation of masochism, plenty of people seem to want to eat food so hot that it will literally make you sick (and could kill you). This sounds like the definition of an ultra-hazardous activity, and wherever there are ultra-hazardous activities there are torts concepts like assumption of risk, negligence, and maybe even strict liability.

So if you find yourself in Nashville looking for something basic and American to eat, perhaps look somewhere other than the local hot chicken joint. But if your real purpose is to experience severe inflammation, shortness of breath, and heart palpitations, I can definitely recommend Bolton’s Spicy Chicken & Fish. But consider yourself warned, and consider your risks assumed.

- Ellis & Acton

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