Do I Have A Claim For Inadvertent Underage Drinking?

Q. On Mother's Day in May 2005 we went to Applebee's and my 11-year-old son got served an alcoholic drink, which was supposed to go to my husband. They were very similar because one was a raspberry lemonade and the other was the same (not sure of name), but with rum in it. The drink was given to my son, put in front of him. My son sucked it down because he was so thirsty. About 15 minutes later, we told the waitress that my husband did not receive his drink and she looked stunned and took my son's glass. About 5 minutes later, I saw people (workers) whispering and pointing from the bar. I realized what had happened and went up to them. I asked them was there or was there not alcohol in my son's drink. They said yes and got the manager. She came over and I told her the situation and she said she was going to get the district manager. A gentleman came over, who we thought was the district manager, and said he was sorry and he would like to give us dessert or a drink on the house. I said we'll think about it. Then another man comes over and apologized profusely, only to find out that the 2nd guy was a manager in training or something like that. He seemed like he was supposed to sugarcoat things. They took an incident report and paid for our dinner. My son fell asleep at the table, we took home his food, and he passed out on the couch when he got home only to wake up with a headache. I was so worried about my son that I did not enjoy my dinner at all. A person from their insurance company called me a day later to apologize and to see how my son was. I told her the situation and she said she would look into it further and would try to correct the problem. I never heard from anyone else from Applebee's and I felt it happens. Now I heard on the news that [another child] in [the city] was served an alcoholic drink also. I am appalled that this happens. So far there are two cases within a two-month period. Do I have a case with Applebee's? I really want to prove a point that this is going on and they should train their personnel and supervise their personnel better.


A. I get these kind of questions all of the time. Just recently, I answered a similar one here. I've started categorizing these questions as "mountain-out-of-molehill" questions because they tend to make much ado about nothing.

Here's the situation as I understand it. Applebees made a mistake by accidentally serving a drink containing alcohol in it to your son. After you pointed the mistake out to Applebees, they apologized and offered to pay for dessert or a drink. You said you'd think about it. You took your son home, he fell asleep on the couch, and woke up with a headache. Although you didn't say, I'm assuming he had no other ill effects.

Now, with those facts, where are we going with this case? As I've mentioned on the air, and elsewhere in my blog, the key component of any lawsuit (after proving some wrong was committed) is establishing your damages. What are your damages? So far, I don't see any. Frustration? Anger? Discomfort? You didn't enjoy your dinner? I mean, even accepting that you were upset back in May 2005, you've had plenty of time to get over it, and that's what just about any juror, and any insurance adjuster, would say upon examining these facts.

I don't mean to sound harsh, and I'm certainly going to give you the benefit of the doubt here, because I know that you love your son and you were very concerned at the time. Serving alcohol to an 11 year old is certainly something we'd like our restaraunts to avoid. But, you obviously detected the problem, and when you brought it to their attention, they offered to fix things for you. Are you happy with the way they handled things, or with what they offered to do? Obviously not, but they were probably concerned that you might be sue-happy, and wanted to be careful with how they handled things.

Here's my advice. I've said this many times before, and I'll say it again. First, you need to get over this. These kind of nuisance claims give lawyers and litigants a bad name. Sure, you could probably find some lawyer to write a strongly worded letter, and maybe even file a complaint on your behalf, but the most you'd get is some nuisance money. Even assuming that all you wanted to do was effect a change in the training policy at Applebees, a lawsuit on these facts is not the vehicle through which such changes will be made.

In my opinion, your best bet is to write a strongly worded letter, brief and to the point, to the Applebees where all this happened. You should express your dismay that your concerns remain unaddressed. You should demand from them what you're looking for -- a letter of apology from the Chairman, or a free dinner, or whatever it is that will make you feel as if your concerns have been addressed. Keep it brief and to the point, and send a copy to the corporate headquarters and the insurance company with which you spoke. You might get some relief this way, but I wouldn't expect much.

Can you file a lawsuit? As I've mentioned before, you can sue anyone for anything. Can you win? That's really the key question here. As I stated, you might possibly get some nuisance money, but that's only a possibility. (Just so you know, if I'm defending this case, I would make you go to trial and prove what damages you actually sustained. But that's just me.)

Anyway, I'm sorry if all this sounds kind of harsh. But I'm just trying to emphasize -- to you and to everyone -- that not every little inconvenience in life, and not every honest mistake, and not every slip in judgment, leads to an actionable claim.

Thanks again, and good luck.