A Virginia man has filed an unusual breach-of-contract lawsuit against a Burger King restaurant for serving him a sandwich with tomatoes, onions and pickles even though he had specifically requested that his order not include those ingredients.

Darius Dugger is, of course, by no means the first fast-food customer to have an order botched. But he has what he calls a “severe, lifelong food allergy” to tomatoes, onions and pickles that was allegedly activated by Burger King's breach of an oral contract to comply with a “limited and restricted food order.”

“[N]otwithstanding its reputation for placing and providing orders in compliance with and as specifically ordered by its anticipated customers, the Defendant breached its contract and duty to comply with and to provide the Plaintiff with the food product he ordered and paid for,” Dugger says in a complaint filed last month.

The suit alleges that Dugger “specifically requested the withholding of onions, pickles and tomatoes” from an order of two sandwiches and a drink that he purchased from a Burger King in James City County, Va., during his lunch break on April 10, 2007.

Dugger left the restaurant and joined a group of co-workers for lunch. But then, the suit says, “[U]pon beginning to consume one of the sandwiches, the Plaintiff ... began to immediately have distressful and severe allergic reactions upon the ingestion of a portion of the prohibited food items.”

Botched food order cases have generally not fared well. “The problem in most cases is that while the contract was breached you don't have any damages, since at most you've lost the value of the hamburger,” notes Professor Frank Snyder, editor of the ContractsProf Blog.

In 2007, a West Virginia man sued McDonald's for $10 million after he allegedly suffered an allergic reaction to cheese in a burger. Jeromy Jackson said the restaurant was liable for failing to deliver his food cheese-free, but the case was dismissed in March.

Dugger is seeking a relatively modest $100,000 in damages for his “unfortunate, but tragic” allergic reaction. But case law suggests he will not be able to recover any damages because it was not foreseeable that he would suffer such a reaction to tomatoes, onions and pickles.

According to the Restatement Second of Torts, a restaurant may be liable for failing to warn a customer that the food contained an ingredient “to which a substantial number of the population are allergic” or an ingredient “which the consumer would reasonably not expect to find in the product.”

In Livingston v. Marie Callender's, 72 Cal.App.4th 830 (1999), a California appeals court said a restaurant had “an affirmative obligation” to warn a customer who was allergic to MSG that its vegetable soup contained the food additive.

“I don't know whether allergic reactions to tomatoes, onions, and pickles are common enough that Burger King should have known” its food would be harmful to Dugger, says Snyder.

Burger King might also make the argument that it would be “unconscionable” to enforce its contract with Dugger since restaurants –- especially the fast-food variety –- cannot reasonably be expected to never botch an order. And Dugger arguably should have inspected his sandwich before he ate it if he has such a severe allergy.

By Matthew Heller
5/12/09