Photo of hands eating burgers and fries

Do’s & Don’ts of Food Claim Handling

“Now, ya’ll would guess that more often than not, the highest paid player on an NFL team is the quarterback. And you’d be right. But what you probably don’t know is that more often than not, the second highest paid player is, thanks to Lawrence Taylor, a left tackle. Because, as every housewife knows, the first check you write is for the mortgage, but the second is for the insurance. The left tackle’s job is to protect the quarterback from what he can’t see comin’. To protest his blind side” – Leigh Anne Tuohy

There is not a restaurant, chef, or restaurateur in the world that looks forward to “the call”. You know the one. The “call” is the first notice a restaurant receives from a customer that the customer became ill after eating at the restaurant. It is imperative that every restaurant have a policy, a protocol in place to ensure that their blind side is covered.

Photo of hands eating burgers and fries

Do’s & Don’ts of Food Claim Handling

DO have a plan in place before you need it

Every restaurant should have a policy in place for receiving any such calls. For example, any customer who calls to complain about an illness or some other issue with food (i.e. an undesirable foreign object found in the food) should be directed to a store manager or someone else who has been trained and advised on how to handle customer complaints.

DON’T Apologize

Regardless, whoever first answers the call should not apologize to the customer.

DO Ask Follow Up Questions

While it is human nature to say “I’m sorry” or “sorry to hear that” when someone explains they are not feeling well or upset, that simple phrase has been used by plaintiffs who claim the apology is an admission of guilt. The better option is to say something neutral and to start interviewing the customer to get as much information as possible. One option is to respond, “Oh no! We have not received any other complaints from customers, do you mind if I ask you a few questions?”

DON’T Volunteer Information

It is also to be noted that the restaurant employee handling the initial claim SHOULD NOT volunteer any information. Even if the restaurant may have received another call where a customer was reporting an illness, such information should not be shared with any other customer. At this stage, it is simply too early to know whether there is an issue at the restaurant or if there is any commonality between the two customers. Telling a customer that other customers have complained as well will only give the impression there is a larger issue at the restaurant when, in reality, any similar complaints may be completely unrelated. Again, the discussion with the customer should focus solely on that customer and getting as much information as possible.

DO ask the following fact-finding questions.

What did you eat?

Although an obvious question, be sure to ask about everything the customer ate (i.e. appetizer, main course, sides, desserts, drinks). If other customers do complain, you will want to have a list of all foods ingested by each complaining customer to determine if there is a common food or ingredient that may have caused the illness.

When did you eat at the restaurant?

The time between when the customer ate at the restaurant and when symptoms started is important in determining whether the illness could be related to food consumed at the restaurant. Some symptoms take several hours to first appear after eating contaminated food. If the customer was just at the restaurant a half hour before calling, it is unlikely eating something at that restaurant caused the customer’s illness.

What else did you eat the day you became ill?

 This goes hand-in-hand with the timing issue discussed above. If the customer had another meal a few hours before eating at the restaurant, that meal could be the cause of the illness. Thus, it is important to know when and what the customer ate the same day he or she ate at the restaurant.

 What symptoms are you having and when did they start?

This information will help evaluate the customer’s claims. As stated above, some symptoms may take hours after eating to develop. Thus, even if the symptoms are the type normally associated with a food-borne illness, the timing of the symptoms may exclude the food consumed at the restaurant as a cause.

 Anyone else in the customer’s party with symptoms or without symptoms?

you will want to know whether the customer ate with anyone else and whether anyone else in the customer’s party is experiencing similar issues. This is especially important if the other member of the party consumed the same food as the complaining customer. Also instructive is whether other members of the customer’s party did consume the same food but did not experience any symptoms. This will help rule out the food as the cause of the customer’s illness.

Was medical treatment sought?

The restaurant should also ask the customer whether he or she sought medical treatment and, if so, whether a diagnosis was received. If medical treatment was sought, be sure to ask what type of treatment, if any, was prescribed.

Was medical treatment sought?

If the customer’s order was a carryout order, you should ask whether the customer still has the food.

We usually work with expert consultants and toxicologists to secure and test any food that was consumed by the complaining customer to test for any contaminants.

In the case of a foreign object, the consultant can also test to determine what the foreign object is and, in some cases, determine when the foreign object was introduced into the food.

If the customer still has the food, or if it is at the restaurant, efforts should be made to have the evidence preserved.

Every restaurant should have guidelines in place for the safe handling of any evidence to be preserved. Before ending the conversation with the customer, be sure to take down all contact information.

DO follow up with the customer the following day

Let the customer know a thorough investigation will be conducted. It is also a good idea to follow up with the customer after a day or so to see how the customer is feeling. By doing so, the gesture will let the customer know the restaurant cares about its customers and takes reports seriously. It must be noted that while a restaurant cannot prevent a customer from pursuing a formal complaint, having the information described above will put the restaurant in a position to mount a strong defense against any questionable or meritless claims

Ohio Supreme Court Strengthens Voluntary Abandonment Doctrine

On September 27, 2018, in a decision that reverses two of its prior decisions, the Ohio Supreme Court strengthened the voluntary abandonment defense used by employers to argue against temporary total compensation in a workers’ compensation claim. The opinion in State ex rel Klein v Precision Excavating and Grading Co. holds that temporary total compensation is not payable in a claim when the injured worker voluntarily removes himself from his former position of employment for reasons unrelated to the claim, even if the claimant remains disabled at the time of the separation from employment.

Supreme Court Ruling on Klein v. Precision Excavating & Grading Company

In Klein, the injured worker informed his employer on October 31, 2014 that he was moving to Florida, and asked about the procedures he needed to follow to properly quit his job. On November 3, 2014 he told a co-worker that he planned to quit in two weeks and move to Florida. He was then injured on November 5, 2014, and did not return to work after that date.  His doctor certified a period of temporary total disability from the date of injury to an estimated date of January 5, 2015.  On November 13, 2014, the claimant informed the Ohio BWC that he planned to move to Florida on November 20, 2014. At administrative hearings before the Industrial Commission of Ohio, compensation was only granted for the closed period from November 6, 2014 through November 19, 2014.  The Industrial Commission found that the claimant had abandoned his employment as of November 20, 2014, for reasons unrelated to the claim, and was not eligible for temporary total compensation from November 20, 2014 forward.

Employee’s Own Actions Preclude Workers’ Compensation Payment

Klein filed a complaint in mandamus in the Tenth District Court of Appeals, disputing the Industrial Commission’s decision to limit his compensation to the period through November 19, 2014. The Court of Appeals granted a limited writ of mandamus and returned the case to the Industrial Commission, with instructions to determine whether the claimant was physically capable of performing his former position of employment on November 20, 2014, per prior case law. The matter was appealed to the Supreme Court and the Supreme Court reversed the Court of Appeals and held that the evidence supports a finding that it was Klein’s intention to leave Precision Excavating permanently and therefore his move to Florida was a voluntary abandonment of his employment that precludes payment of temporary total compensation after November 19, 2014. The Court held that it was Klein’s own actions that prevented him from returning to his former position of employment and not the workplace injury.

Ohio Supreme Court’s Striking Departure Favors Employers

This is a striking departure from prior decisions of the Ohio Supreme Court and is favorable to employers.  In its analysis, the Supreme Court acknowledged that in the various voluntary abandonment cases it had issued over the years, it had essentially created two lines of precedent for voluntary abandonment.  There was one set of rules granting compensation for employees who are terminated for cause while disabled, and another set of rules denying compensation for employees who voluntarily left the workplace. In Klein, the Court held that in both situations the relationship between the industrial injury and the loss of earnings is severed. Based on this decision employers can successfully argue voluntary abandonment against the payment of compensation, even if the injured worker is disabled at the time of the abandonment.

Related Supreme Court Rulings Not Impacted

It should be noted that the Supreme Court did not disturb the decisions Gross II, where the termination was causally related to the injury or Cordell, where the injury resulted in the discovery of the work rule violation.  Under both fact patterns, temporary total compensation will not be precluded by a voluntary abandonment argument.

Posted by Beth Weeden

 

Perez & Morris Diversity in Business Award, photo of team in front of a window

Perez & Morris Garners a Diversity in Business Award

Perez & Morris Garners a Diversity in Business Award

Columbus Business First Names Perez & Morris an Honoree in the Outstanding Diverse Organization Category

COLUMBUS, Ohio, July 18, 2018 – Today, Perez & Morris, LLC, a business defense law firm representing clients in the retail, construction and development, and transportation and logistics industries, announced that it’s been honored with a Diversity in Business Award. Columbus Business First has named the firm an honoree in the Outstanding Diverse Organization category.

The Diversity in Business Awards cover excellence in all areas of diversity, including age, disability, gender, sexual orientation, race and religion, as well as highlighting diverse organizations and individuals across a wide variety of industries. Honorees will be recognized at the Diversity in Business Awards Luncheon Thursday, August 9.

“It’s such an honor to be recognized with an award as an Outstanding Diverse Organization,” said John Perez, founder, Perez & Morris. “Perez & Morris prides itself on maintaining a diverse workforce and encourages diversity in hiring new members of our team. It’s at the center of everything we do. As the largest Hispanic-owned law firm in central Ohio and with nearly 50% of our attorneys women, we absolutely believe in walking the talk when it comes to diversity.”

Perez & Morris actively participates in organizations including Women for Economic and Leadership Development (WELD), the National Association of Minority & Women Owned Law Firms (NAMWOLF), the National Association of Women Business Owners (NAWBO), the National Society of Hispanic MBAs (NSHMBA) and the Ohio Hispanic Chamber of Commerce.

About Perez & Morris

Perez & Morris LLC guides its clients in the proactive management of risk and liability exposure across nearly all business practice areas, focusing on the retail and restaurant, construction and development, banking, and transportation and logistics industries. The firm provides outside general counsel, transactional and business litigation services coast to coast from its offices in Ohio and New York. Founded 20 years ago on the premise that great legal work requires diligence, attention to every detail, and above all, reliable expertise, the firm celebrates diversity as the core of who we are and the heart of our success with our clients across the country.

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Sarah Perez, 40 under 40

Sarah Perez of Perez & Morris Named to 40 Under 40

Sarah Perez of Perez & Morris Named to 40 Under 40

Class of Honorees by Columbus Business First

Perez Selected from a Record Number of Nominees in Long-Running Awards Program

Sarah Perez of Perez & Morris Named to 40 Under 40, Sarah Perez HeadshotCOLUMBUS, Ohio, April 24, 2018 – Today, Perez & Morris, LLC, a business defense law firm representing clients in the retail, construction and development, and transportation and logistics industries, announced that attorney Sarah Perez has been recognized as an honoree in the 40 Under 40 Class of 2018, as selected by Columbus Business First.

Perez has worked to grow the firm’s labor and employment practice area. Throughout her tenure at Perez & Morris, she’s managed multi-million-dollar litigation, negotiated numerous corporate transactions and arbitrated complex commercial matters.

Among Perez’s accomplishments, she has played an active role serving on committees for the past several years for both Women for Economic and Leadership Development (WELD) and the National Association of Minority & Women Owned Law Firms (NAMWOLF).

Most recently, in February, Perez was selected to participate in a panel of industry leaders at Mentoring Monday sponsored by Columbus Business First. She also served as a mentor at the event.

Perez is the founder of the Overcomer Foundation, launched to  economically empower women in the central Ohio community by focusing on access to education and affordable childcare. Through the foundation, Perez hopes to eliminate barriers for women who want to break the cycle of poverty and achieve stability for their families by pursuing the next step in their education.

In addition, Perez is actively involved in her church, Movement Church in Hilliard, as well as in her children’s school activities in Worthington.

“Sarah is visionary in her approach to addressing social and community issues. For the past several years, I have had the privilege to witness Sarah Perez’s commitment to run a purpose-driven law firm that measures its success not just on the number of clients it serves or cases it wins but, far more importantly, on the value and impact it has on the community,” said Barb Smoot, president and CEO of WELD. “As a result, Sarah is sought as a speaker and mentor for women who want to learn how to engage in community service in ways that drive impact, deliver results and bring more meaning to their lives.”

In its 26th year, the 40 Under 40 awards program received a record number of nominations. The honorees will be celebrated with a party at the Hollywood Casino the evening of Thursday, May 24.

“At Columbus Business First we’re very proud of our longest-running awards program, 40 Under 40. This is our 26th year celebrating central Ohio’s most promising next generation of leaders,” said Nick Fortine, president and publisher, Columbus Business First. “This year was our most competitive with over 300 nominations and a record 236 completed applications. Our honorees are among select company.”

About Perez & Morris

Perez & Morris LLC guides its clients in the proactive management of risk and liability exposure across nearly all business practice areas, focusing on the retail, construction and development, and transportation and logistics industries. The firm provides outside general counsel, transactional and business litigation services coast to coast from its offices in Ohio and New York. Founded 20 years ago on the premise that great legal work requires diligence, attention to every detail, and above all, reliable expertise, the firm celebrates diversity as the core of who we are and the heart of our success with our clients across the country.

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NAMWOLF BUSINESS MEETING IN SAN ANTONIO A GREAT SUCCESS!

P&M attorneys John Perez and Sarah Perez attended the 2015 Business Meeting for the National Association of Minority and Women Owned Law Firms (NAMWOLF) last week in San Antonio, Texas.  At the Meeting, the organization delved deeper into how to position minority and women-owned law firms to increase their client base and best showcase their skills and expertise.  In addition, planning is well underway for the 2015 Annual Meeting in Hollywood, California.  We are proud to be members of this great organization and a huge thank you to the Texas-based firms who planned a productive and fun Meeting!

Pictured above: Members of the Labor & Employment Practice Area Committee enjoying a delicious meal at Bella on the Riverwalk.

Rule 409: Offers to Pay Medical and Similar Expenses

Risk Management Flow Chart

Risk cannot be fully eliminated. Part of being a business leader is accepting and mitigating risk. Accidents are a side effect of doing business.

From primary costs to societal costs, accidents are costly. When one occurs, businesses need to respond by assisting the injured. Prompt medical attention reduces the likelihood of serious injury. Indeed, minor untreated injuries can become serious. Whether you are liable or not, offering to pay for the associated medical expenses upfront can greatly decrease your overall risk. Unless, the probative value is substantially outweighed, the evidence of offering to pay or paying cannot be used against you to prove liability.

Rule 409 (The Federal Rules of Evidence) states, “Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.” Indeed, Rule 409 is policy driven to encourage companies to pay for the medical expenses of those injured on their premises. Nonetheless, Rule 409 does not preclude the admission of accompanying statements or the admission to prove a different fact at issue that is not liability.  To develop an accident protocol to help mitigate risk, contact us.

Posted by Sarah Crabtree Perez and Chad Trownson

Attorney Sarah Perez Featured in DRI’s Newsletter, The Voice

Check out the spotlight on P&M attorney, Sarah Perez, published in DRI’s online publication, The Voice.  DRI is a nationwide organization for defense attorneys. We have included the story below as well as link to the publication. http://portal.criticalimpact.com/newsletter/newslettershow5.cfm?contentonly=1&content=23416&id=2837.

DRI- The Voice-150318_Page_1

 

Open-and-Obvious Doctrine Saves Save-A-Lot from Liability

Caution Wet Floor

Slip-and-Fall cases can cost a company substantial dollars.  As just one example, in Cintron-Colon v. Save-A-Lot, Ms. Clinton-Colon was shopping at an Ohio Save-A-Lot when she slipped on “a bright yellow liquid and fell.” Largely due to the nature of the puddle being bright yellow the court concluded that the “liquid would have been observable to a reasonable person. Therefore, the puddle was an open-and-obvious condition and the store owed no duty to the appellant (Ms. Clinton-Colon) to warn of its existence.”

For slip and fall cases, the Supreme Court of Ohio adheres to the open-and-obvious doctrine, which directs a court’s attention to “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” Therefore, the open-and-obvious doctrine requires an objective analysis that looks to whether a “reasonable person would deem the danger open-and-obvious,” rather than the subjective opinion of the victim.

Whether a hazard is visible is not the sole consideration of the open-and-obvious doctrine, the attendant circumstances must also be considered.  Attendant circumstances encompass all the facts involved with the accident. If a distraction occurred that would reduce a reasonable person’s attention, the distraction must be taken into account and a reduction of the amount of care expected.

Not all puddles are bright yellow and carry a strong presumption of being open-and-obvious. Especially in the winter season, floors become wet for a variety of reason and become slipping hazards that could cost you millions. To reduce the probability you are found liable for a slip and fall case, you can post signs indicating the floor is wet at your store entrance. As was held in Finzzo v. Speedway, a Michigan case, “Regardless of whether the wet floor itself was an open and obvious condition, the wet floor signs posted at each store entrance to warn customers of a potential risk certainly were.” The court further elaborated, “The proper display of a wet floor sign makes the danger associated with a wet floor open and obvious as a matter of law, and is in fact why such signs are used.”

 

Authored by Sarah Perez & Chad Trownson

Breaking the Ice; New York’s Law on Clearing Icy Sidewalks

Winter Time, Snow Removing

Living and working in Ohio, we have learned to use extra caution when there are icy conditions. Even with extra caution, walking on ice can be dangerous. Roughly 1% to 5% of falls result in a serious fracture, according to the Journal of Bone & Joint Surgery and it is likely that ice related falls are worse than that. In fact, over 20% of US private industries injuries stem from slip and fall accidents.

19 Action News (a Cleveland news company) recently highlighted the dangers of ice on sidewalks. Most of 19 Action News’ advice falls into two categories; walk careful in proper footwear and to remove ice that creates the danger.

In New York, lawmakers have attempted to define the extra care that is required in clearing the sidewalks.  The New York Administrative Code indicates liability for snow and ice typically begins “four hours after the snow ceases to fall.” There are two main exceptions at play. First, there is an exception for certain nighttime hours (9:00 PM to 7:00 AM). Second, there is an exception if the removal would damage the pavement or the weather does not permit its removal.  If you live or work in New York, you better have your shovel handy.

For More Information:

The National Library of Medicine National Institutes of Health detailed the likelihood of injuries for age, profession, gender and a variety of other factors.

 

Authored by Sarah Perez & Chad Trownson

P&M Successfully Defends Contract Termination, And Helps Client Recover Attorney Fees

P&M successfully defended a national transportation and logistics company (“Logistics Company”) in an arbitration regarding the termination of multi-year contract relating to vending machines.  The vending machine supplier alleged the contract was prematurely terminated and sought three years of lost profits in damages.  The arbitrator found in the Logistics Company’s favor holding the contract had been properly terminated, and awarded the Logistics Company its attorney’s fees and costs.  Bob Nichols of P&M represented the Logistics Company.