Flying Shrimp

The Estate of Jerry Colaitis has sued Benihana's for $10 milllion, alleging that the actions of a chef at a Benihana restaurant set in motion a chain of events that caused Colaitis' death. The lawsuit alleges that the chef was negligent. Since the chef was an employee of Benihana's who was acting in the scope of his employment, if the chef was negligent, then Benihana's will be liable to the estate of Colaitis.

Assume that the following facts have been established in discovery:

Jerry Colaitis went to dinner with his wife and children at a Benihana's restaurant. As is customary at Benihana's, the chef serving the family began flipping pieces of hot food toward the diners, on one occasion burning one of the children. Although asked to stop, the chef continued to flip pieces of food toward customers. When the chef flipped a piece of shrimp at Jerry Colaitis, he ducked away, injuring two vertebrae in his neck.

Because of this injury, six months later Colaitis had to have surgery and a second surgery two weeks after the first. Following the second surgery, Colaitis developed a high fever and problems with his breathing and memory. Colaitis died 5 months after the second surgery.

Consider the elements of a claim of negligence. What is Benihana's best argument as to why there was no negligence? Explain.