Tort Reform

Eggshell Plaintiff Felled By Spicy Sauce Gets $85,000 Judgment

It's a law school issue spotter, but in real life, with tasty fra diavolo.

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The tortfeasor takes the victim as he finds him. It’s a fundamental doctrine of our tort system. It’s one thing to have a contributory negligence regime, where the victim’s own actions diminish the liability of someone who caused harm. But the system doesn’t really work if it has to worry about a plaintiff’s own natural fragility. If we did that, nobody would get a tort payment unless the harm could have injured LeBron James.

That said, “eggshell plaintiffs” result in some of the dumbest possible outcomes in the tort system.

Such is the case of Constance Koulmey.

Koulmey was eating at an Italian restaurant in Connecticut. She was leaving the establishment. But at the very moment she was leaving, lawyer James P. Sweeney got into an argument with another man. Sweeney picked up his “full dish” of pasta with fra diavolo sauce, and hurled it at the man he was arguing with. Unfortunately, Sweeny’s aim was bad, and the “brunt” of the pasta landed on Koulmey.

Koulmey claims that the spicy sauce got into her eyes, causing her to hit her head, causing her to get a concussion, and eye pain, and neck pain, and back pain. Good thing Sweeney didn’t errantly throw some hot sauce, because Koulmey might have died on the spot.

A Connecticut jury awarded Koulmey “$85,049 plus interest for a total of $102,550 to pay Koulmey’s medical expenses and noneconomic damages.”

I hear you, tort reform mafia, I really do. Somehow, there’s got to be a better way than giving a person $100,000 bucks just because she got some sauce in her eye.

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But I say to you that the better way is called “universal health care.” The tort system is here because human frailty is a thing and medical bills are expensive. I don’t like the lottery aspect of our tort system any more than you do. An economically secure lawyer throws pasta, so Koulmey gets money. If Koulmey had accidently spritzed perfume in her eye and hurt herself, she’d get nothing. If a homeless man had thrown the pasta, there’d be nothing to get. It’s random and stupid. If there are $85,000 worth of pain and injuries, the state should pay, instead of going through the pony show of trying to assign blame to the pasta thrower.

And I know what the plaintiff’s bar is saying too… Sweeney shouldn’t be throwing food around in a public place. I’m sensitive to those concerns too. But, it’s worth pointing out that while Sweeney was charged with assault and breach of the peace, both of those charges were dismissed. Sweeney, for his part, claims that he was acting in self-defense, and he says that he didn’t actually order spicy fra diavolo anyway. I don’t know, I wasn’t there, but I think it’s an indication of superior New England civilization when people throw food to settle arguments. In Texas, the guns would probably come out, and Koulmey would have gotten a bullet in the eye instead of sauce.

In any event, you take the victim as you find them. If somebody throws a glass of water on me, and I melt into a pile of goo, I want my family to be able to recover for wrongful death.

Attorney Must Pay $103,000 After Flinging Hot Pasta During Restaurant Fight [Connecticut Law Tribune]
Woman who sued lawyer for misdirected pasta throw is awarded more than $85K [ABA Journal]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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