THIS WEEK IN TORTS

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