This was the lesson from Longinetti v. Ocean Casino Resort, a recent unpublished Appellate Division decision.
Plaintiff was playing slots at the Ocean Casino Resort in Atlantic City and drinking a virgin bloody mary. The drink was prepared with ”non-skewered olives stuffed with pimentos.” Unfortunately, one of the olives had a pit. When Plaintiff bit down on that olive, he broke his tooth. He sued the casino for the costs he incurred to repair his tooth.
At trial, plaintiff testified that the casino “normally” served its virgin bloody marys with three or four stuffed olives on a skewer. But this time, the olives were floating in the cup. So he had to “try to drink them out of the cup . . . and eat them that way.” He was surprised when he bit into an olive with a pit because he “probably had thousands of olives and never one with a pit.” (As a side note, if plaintiff consumed all of his olives in virgin bloody marys, then he’s had more than 250 virgin bloody marys in his lifetime, which seems both unlikely and unpleasant.) Plaintiff claimed that the bartender “should have skewered the olives and would have known there was a pit in the olive and thrown it away.”
The casino both denied liability and argued that plaintiff should have sued the vendor that sold the casino the olives used to prepare the drink.
After trial, the court found the casino negligent and awarded plaintiff around $1,500 for the costs associated with repairing his tooth. The trial court noted that plaintiff could have sued the vendor under a product liability theory, but that plaintiff did not have to do so. And, as for the casino’s negligence, the trial court held: “I learned something about bloody marys . . . evidently they are made with skewers and this one somehow the bartender missed it. I don’t think it was on purpose.”
The casino appealed and the Appellate Division reversed.
The Appellate Division first found that the evidence did not support the trial court’s conclusion that the casino had a duty to use skewered olives to prepare plaintiff’s drink. The trial court’s only support for this conclusion was plaintiff’s testimony about his past experience drinking virgin bloody marys at the casino, which the Appellate Division deemed insufficient:
[The casino’s] apparent past practice of using skewered, pitted olives is not the equivalent of a legal duty for the casino to use skewered, pitted olives every time it prepares a virgin blood mary. The record contains no evidence that a virgin bloody mary can be safely prepared only through the use of skewered, pitted olives, that skewering olives is the accepted method of ensuring they are pitted, or that serving a virgin bloody mary with an unpitted, non-skewered olive constitutes a breach of duty to a customer who orders the drink.
The Appellate Division further held that the trial court erred in finding that the casino’s alleged breach caused plaintiff’s injury. Instead, the Appellate Division held that plaintiff assumed the risk when he departed from his normal olive eating habits:
[Plaintiff] testified that he was aware that the olives in his drink on the day in question were not skewered but were “floating in the cup.” Despite his knowledge of what he claims to be a departure from the required practice of skewering olives to ensure they are pitted, Longinetti elected to pour the olives from the cup into his mouth and bite down. Given his admission, he appears to have assumed the risk that the olives had pits.
In light of these findings, the Appellate Division reversed and vacated the judgment against the casino.