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Saturday, June 15, 2024 | Back issues
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Texas Roadhouse Avoids Punitive Damages Award

WISCONSIN (CN) - Texas Roadhouse does not have to pay punitive damages for negligently failing to stop its broil cook from cutting a hole in a customer's steak and sticking his hairs inside it, an appellate court ruled.

The decision reverses the verdict by a Wisconsin trial court and Judge Andrew T. Gonring.

According to the opinion, plaintiff Kevin J. Hansen was dining at a Texas Roadhouse restaurant on February 23, 2008, and felt that his steak was overcooked. Though he did not send the meal back, the assistant manager convinced him to take a complimentary replacement steak home.

Broil cook Ryan Kropp testified at trial that after preparing this replacement, he went to the refrigerated meat room and placed hair from his face on the steak.

However, his coworker Michael Perkins testified that Kropp "poked a hole in the steak ... and said 'these are my pubes,'" the opinion said.

Perkins allowed the steak to be served, but then later informed the kitchen manager about the incident, who in turn told the service manager, Nicole Livermore.

Livermore testified she did not know the steak in question had been taken to go and, assuming it had been consumed hours before, did not attempt to contact Hansen. She did attempt to contact the general manager.

Hansen discovered the hair in his steak the next morning after two or three bites and managed to avoid consuming it. He then took the offending steak to the police department and filed an incident report. Kropp was later convicted of "placing foreign objects in an edible" and Hansen's civil suit followed.

While a jury found Hansen entitled to "punitive damages for injury he suffered after he discovered human hair intentionally placed in his food," the Wisconsin District II Appeals court reversed the decision and remanded the case.

According to the majority opinion penned by Judge Lisa Neubauer, "while the jury found Texas Roadhouse negligent in the supervision of Kropp, it did not find that this negligence caused Kropp's actions."

Neubauer added "the jury found Texas Roadhouse liable only under the third cause of action: breach of implied warranty" and "it is well established that punitive damages cannot be awarded based on breach of implied warranty."

The difference in the trial and appellate court's opinions hinged on the crafting of the verdict questions, which do not specifically ask if the Texas Roadhouse management is negligent for not seeking Hansen out after discovering that hairs had been placed in a steak.

The trial court found that despite the fact "the verdict was not the most artfully crafted," it would affirm the verdict because it "implies at least underlying negligence on the part of the management of Texas Roadhouse," because after they "became aware of the violation that their employee, who the jury found was negligently supervised, had committed" they failed to seek out the customer.

However, Neubauer found this decision ignored the fact the jury found Texas Roadhouse's negligent supervision was not a cause of Kropp's wrongful act. "Even if the jury considered Texas Roadhouse's conduct both before and after discovery of Kropp's action, the jury did not find that Texas Roadhouse's acts or omissions were a cause-in-fact of Kropp's actions," it says.

The opinion goes on to explain that for a negligent supervision claim to succeed, "the jury must find a causal connection between the employer's negligence and the employee's wrongful act." That was not the case here, Neubauer wrote.

In a dissenting opinion, Judge Paul Reilly wrote the majority was wrongfully overturning a jury's decision, stating "The flaw in this trial was in the wording of Question No. 4 on the special verdict form, the 'cause' question."

Question 4 stated, "Was Texas Roadhouse's negligence a cause of Ryan Kropp's act of contaminating the subject steak?" And the jury found the answer was "No."

Reilly added that Hansen objected to this wording at the instruction conference and had submitted a correction and it is therefore unfair to fault him and deny him punitive damages when a jury found that the defendant, Texas Roadhouse, was indeed negligent.

The decision upheld the trial court's decision to grant summary judgment that Texas Roadhouse was negligent in its failure to discover and consider Kropp's previous criminal record, "including convictions for disorderly conduct, bail jumping and misdemeanor possession of marijuana" and the fact that he was fired from Applebee's for drinking on the job.

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