Prior to his death, Filiberto would frequent Herk's Tavern every Thursday night after work. He often remained until closing and would then go out to eat with his friend Philip R. Bracchi -- the tavern's bartender, sole owner, officer and employee. On the night in question, Bracchi decided to drive the pair to a local diner. While at the establishment, both men ordered a hot roast beef sandwich. After the food arrived, Filberto choked on his sandwich and died.
In a suit filed by the decedent's estate, the Supreme Court found Bracchi partly responsible for Filiberto's death because he had voluntarily assumed a "duty of care" by agreeing to drive his intoxicated friend home. According to the trial court, "although there was no duty originally, once a person voluntarily agrees to take charge of someone who is not able to adequately protect himself, that person will be liable for harm caused by the failure to exercise reasonable care while in their charge."
The Appellate Division, Third Department, disagreed and reversed the lower court's decision. The AD3 was of the opinion that no "duty" arose simply because Bracchi had offered to drive his friend to a diner. That, according to the AD3, neither amounted to "taking charge" of the decedent, nor triggered a duty of care to his then intoxicated friend.
A negligence claim may be brought against a party if it can be established that the individual who allegedly perpetrated the wrong owed some reasonable duty of care to the injured person and that injury -- death in this case -- resulted from a foreseeable risk.
The appellate court explained that even if Bracchi had owed Filiberto a duty of care, it was not foreseeable to anyone ("other than perhaps a medical professional") that Filiberto would choke on an unchewed piece of roast beef and die. Thus the negligence claim needed to be dismissed.
Never was much of a roast beef fan.
For a copy of the Appellate Division's decision, please use this link: Filiberto v. Herk's Tavern, Inc.