Restaurant Chain Wins Appeal in Tampered Food Case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Dec. 10, 2012 – The steak Kevin Hansen ordered from a Texas Roadhouse restaurant wasn’t supposed to have hair in it. But Hansen recently lost his appeal against the restaurant to collect tort-based damages for the illegal actions of a cook who intentionally put it there.

In 2008, Hansen stopped into a Texas Roadhouse restaurant in West Bend for a medium-rare steak. The steak he ordered was overcooked, and Texas Roadhouse gave him one for free to take home. But not before cook Ryan Kropp added a special ingredient: his own pubic hair.

Hansen took the steak to-go and noticed the hair when he sliced into it the next day. He took it to police station and filed a report. Kropp was convicted for placing foreign objects in edibles.

Hansen then filed a lawsuit, alleging four causes of action against the restaurant. He said Texas Roadhouse was negligent in hiring and supervising Kropp, the restaurant was vicariously liable for Kropp’s actions, breached an implied warranty that food be fit for human consumption, and acted with intentional disregard by not following up on reports about Kropp’s stunt.

Kropp had told a co-worker what he’d done, and the co-worker told a supervisor, but the supervisor did not make attempts to identify the compromised steak or locate Hanson.

After a five-day trial, the jury awarded Hansen nearly $30,000 in compensatory damages and another $100,000 in punitive damages. The court entered judgment. An appeal followed.

In Texas Roadhouse Inc. v. Hansen, 2010AP3137 (Dec. 5, 2012), the District II Wisconsin Court of Appeals ruled (2-1) that Hansen was not entitled to tort-based damages.

“Because the jury did not find tort liability, much less award compensatory damages based on a tort claim, punitive damages are not available,” wrote Judge Lisa Neubauer.

The jury found that Kropp acted outside the scope of employment, precluding Hansen’s vicarious liability claim against Texas Roadhouse.

The jury also found that Texas Roadhouse was negligent in supervising Kropp, but the negligent supervision did not cause Hansen’s damages, a necessary element for that specific claim. “Thus, any claim based on negligent supervision fails as a matter of law,” Judge Neubauer explained.

The jury found that the restaurant intentionally disregarded Hansen’s rights after becoming aware of Kropp’s actions, but this was a question relating to punitive damages. The appeals panel explained the trial court could not imply a claim for general negligence.

“It is undisputed that the punitive damages question did not pose a causation question,” the majority wrote. “So even if the evidence supported a finding of negligence and an attendant award of punitive damages, the jury did not make that finding,” Judge Neubauer wrote.

The appeals panel majority reversed orders entering judgment to Hansen for compensatory and punitive damages based on general negligence. The panel also rejected Hansen’s claim that Texas Roadhouse was negligent for hiring someone with prior drug and alcohol problems.

“Absent additional evidentiary support, we agree that the jury would be invited to speculate that Kropp’s prior drug and alcohol-related offenses could have reasonably alerted Texas Roadhouse that he would deliberately engage in criminal tampering of food,” Neubauer wrote.

In dissent, Judge Paul Reilly ruled that Hansen presented a negligence claim, the jury ruled on it, and would have affirmed the compensatory and punitive damage awards.

“Both the complaint and the amended complaint alleged negligence on the part of Texas Roadhouse management, and the jury found Texas Roadhouse negligent,” Judge Reilly wrote. “The majority seems to fault Hansen for giving too much detail about his negligence claims in his pleadings.”