respond to two of your peers with meaningful responses.
1st students discussion
The action of your own free will. Although it is not a legal term, it can be interpreted by the textual words that a person performs an action under his or her own will and that the results of that action or the consequences fall on the subject. If it is a way in which the chef serves the food and even something iconic and cultural for the restaurant. But is the individual obliged to receive the food with the mouth thrown by the chef? I don't think so, although it seems something that the chef does commonly, also if the client asks him not to do it, it is very likely that he will not do it. I have never heard of a restaurant that forces or conditions the way we eat.
For example, going to a Chinese restaurant and choosing to eat with a fork and not with chopsticks and the person suffocating and dying with food because the portions are bigger on a fork. Therefore, this person is responsible for his action, which caused the lesson. He did not consider that the restaurant has to pay compensation, nor that it is guilty of the death of the man and that perhaps it should be an investigation of the doctors who performed the surgery. Since it is more likely that there was medical diligence in the surgical process and that this would have caused the death of the person, than the lesson in the neck when trying to take food.
2nd students discussion
I do not believe Benihana should be liable for the man's death in this case. For this to be a successful case of negligence, four elements must be met:
First, duty of care. In this case, duty of care was likely met as the man in question was a patron of Benihana. As such, they had the duty of care to ensure their practices kept their patrons safe from harm.
Second, breach of duty. Breach of duty was not met here. Benihana had been marketing their restaurant as utilizing the entertainment of chefs tossing food for some time prior to this event. The man had been been present for a period of time engaged in the party where food was being tossed. He did not decline the invitation, nor did he leave the premises upon being engaged in food tossing. Had Benihana been tossing knives, an activity which could reasonably give the expectation of injury, breach of duty may be met. But tossing food would not give cause for expectation of injury. Benihana could also not reasonably anticipate the man, who had demonstrated participation in the activity, would retch his neck in such a manner as to cause extreme injury.
Third, causation. Whether causation was or was not met here is unclear from the details given. Medical records would need to be reviewed in order to make that determination. It seems somewhat likely that a new neck injury requiring surgery could have resulted from this neck injury if this had been the first neck issue the man had. However, most surgical complications become apparent within 30 days, so the chances that his death was caused by complications caused by the neck surgery 5 months prior as stated in the example, are pretty low. But again, medical records would need to be reviewed in order to make a full determination. In addition, if the infection and fever did result from the neck surgery, was the plaintiff's death a result of proximate cause of the injury sustained at Benihana? Did the man follow proper recommendations of care of his injury post surgery? Did he attend all follow up visits to ensure the surgical site was healing properly? Did he immediately see a physician at the first sign of infection? If the man did not follow all recommended courses of action by his doctors and of any reasonable person, he would be at least partially responsible. Say for example, he was busy at work and skipped dr's appt's to check on the surgical recovery, didn't finish a course of antibiotics, or waited longer than is reasonable to see a physician about issues arising from the surgery.
Fourth, recognizable injuries. In this case death would be the recognizable injury sustained in this compensatory damages case.
As breach of duty and causation have not clearly been met, I would say that no, Benihana is not liable for this man's death.