Michael Froomkin writes:
Dennis Kucinich Appears to Have Lost His Mind: Yes, this is a silly suit for a politician to bring because he will be ridiculed by bloggers.
But on the merits I think you have missed two things. First, it is plausible to say that restaurants have duty to serve sandwiches without dangerous hard things in them. It is not reasonable to put the burden on the consumer because that would require that the consumer have a duty to take the sandwich apart to examine its safety. That makes a mess and destroys the sandwich. The least cost avoider here may well be the maker of sandwich, who can look over the material as they put it together, or even do it en mass before doling it out in servings. This sort of suit may actually preserve incentives leading to an efficient result.
Second, since we lack a decent health system, the tort system is in effect how we socialize certain medical costs. It undoubtedly is a hideously inefficient way of spreading losses, but it's how we do it. In that context, this suit is much less unreasonable than you suggest.
Biting an olive pit rarely leads to breaking a tooth. Breaking a tooth rarely leads to a fortune in dental bills--especially if when you bit an olive pit and suffer excruciating pain, you then go to the dentist and don't "shake it off and go right back to work."
This injury required nearly two years, three dental surgeries, and a substantial amount of money to rectify. The legal action you have heard about was filed due to the severity, expense and duration of the dental injury, the complications which followed and which still persist.... When I bit into the olive pit, (unbeknown to me at the time), upon impact the tooth split in half, vertically through the crown and the tooth, below the level of the bone.... The internal structure of the tooth was rendered nonrestorable. Although the pain was excruciating, I shook it off and I went right back to work. This tooth is a key tooth which anchored my upper bridgework. The injured tooth and the bone above it became infected. I took a course of antibiotics for the infection, had an adverse reaction to the antibiotics which caused me to have an intestinal obstruction and emergency medical intervention. Later, my dentist referred me to a specialist who informed me that the damaged tooth had to be removed. A third dentist removed the tooth and I was fitted for a temporary partial. I waited for the bone to heal. An implant was placed, but it failed. Many months later still a second implant succeeded. My bridgework had to be completely reconfigured, a new partial was designed, so this injury did not affect only one tooth, but rather involved six (6) replacement teeth as well. A new crown with a new precision attachment was engineered and put in place. To clarify, no dental expenses were covered by any health plan, nor did I have dental insurance that covered the injury, which, until it was resolved, affected my ability to chew food properly...
Seems to me that the least-cost risk avoider here is Dennis Kucinich: when you suffer excruciating pain in a tooth, you should go to the dentist. The second lowest-cost risk avoider is the dentist who prescribed the wrong antibiotic. The third lowest-cost risk avoider is the dental surgeon who did the failed implant.
None of these are the sandwich maker. Strict liability for sandwich makers really does not seem the way to go here.