The family of a line cook who died after eating shellfish off-hours to which he was allergic is entitled to a $4.8 million jury award, the Illinois Appellate Court ruled Tuesday.
Angel Rivas worked at the restaurant where he ate the shellfish in an employer-provided meal. As documented in Rivas v. Benny’s Prime Chophouse, LLC, Luz Rivas, his widow filed a workers compensation claim after the 2010 incident, which the insurer denied. In 2012 she filed a negligence lawsuit, alleging that the restaurant was aware of her husband’s shellfish allergy and failed to inform him that the meal contained shellfish. She also alleged that the restaurant did not adhere to safety standards in handling allergens.
The restaurant’s insurer raised three affirmative defenses: that Mr. Rivas’ level of contributory fault exceeded 50%, meaning Ms. Rivas was barred from recovery; that Mr. Rivas refused immediate medical care when his coworker offered him an antihistamine after he ate shellfish; and that the Workers’ Compensation Act provided the exclusive remedy for her claim.
A trial court disagreed, awarding Ms. Rivas and her children $8.1 million. After reducing the total damages by 40%, deemed the percentage of Mr. Rivas’ contributory negligence for not having asked about shellfish in the food, the trial court awarded the family $4.8 million, plus costs and prejudgment interest.
On appeal, the employer argued that the trial court should have granted its motion on its affirmative defense concerning the Workers’ Compensation Act’s exclusive remedy, that the trial court made “a number of errors concerning the admission of evidence and other trial matters,” and that the damages award “was excessive” and Mr. Rivas “was more than 50% at fault for his death.”
The appeals court affirmed the lower court ruling, writing that the exclusive remedy did not apply, as the trial court identified the risk to which Mr. Rivas was exposed was the “risk of injury due to consumption of seafood.” The law classifies that as a “personal risk” and that his “injuries did not arise out of his employment,” the appellate ruling says.
The appeals court also wrote that the “trial court found that the decedent’s injury did not occur during the course of his employment, as the decedent had completed his work for the day and was eating an optional meal provided by defendant.”
This article was first published in Business Insurance
