Metropolitan News-Enterprise


Monday, February 24, 2003


Page 1


Judge Usurped Jury Role in Restaurant Dispute Case, Court Rules


By ROBERT GREENE, Associate Editor


The head chef at a San Francisco Thai restaurant might well have been acting outside the scope of his employment when he plunged his kitchen knife into his assistant and scalded a police officer with two pots of hot cooking oil, the First District Court of Appeal has ruled.

The court reached its conclusion in the course of throwing out a verdict for the injured policeman and against the restaurant’s owners for negligent supervision of the chef. The trial judge should have let the jury decide whether the chef’s actions were reasonably foreseeable to his employers instead of instructing that they were, the court ruled.

In an opinion for Div. Five filed Jan. 29 and certified for publication Friday, Justice Laurence T. Stevens pointed out that the cook’s peculiar conduct “was obviously not part of his job description.”

A reasonable jury could find that even in a kitchen where disputes occur and sharp knives and boiling oil are within easy reach, there was nothing in this kitchen that could be expected to set off this particular cook, the justice said. Still, he acknowledged, a jury also could find that such an attack on an assistant, and injuries to an officer attempting to settle the dispute, was a risk “broadly incidental” to running a restaurant.

“We cannot say that every restaurant owner should be vicariously liable for every assault perpetrated by his employees merely because the restaurant has a kitchen,” Stevens wrote.

Firefighter’s Rule

But since San Francisco Superior Court Judge Gerald E. Ragan determined that officer Tadao Yamaguchi could recover under a statutory exception to the firefighter’s rule and instructed the jury that owners Chaiyut Harnsmut and Urai Chaloeicheep were as a matter of law responsible for the acts and omissions of their chef, Stevens said, a verdict for Yamaguchi was virtually preordained.

The incident giving rise to the ruling occurred on Aug. 6, 1998 in the kitchen of Lalita, a restaurant in San Francisco’s civic center often rated as having the city’s best Thai cuisine.

A dishwasher named Noy Sivongxay had been working there about a year and a half and had been promoted to kitchen assistant. The chef, Wisan Vatanavkovarun, came aboard about four months after Noy.

The two men apparently did not hit it off. Noy believed the chef acted like a dictator, although he thought the chef was joking when he threatened him with a knife during the course of one of their arguments.

On the day of the attack, the chef greeted Noy at the restaurant with a smile. The two men had no other interaction until five minutes later, when Noy was bending down to sort some vegetables and, as Stevens put it, “felt a knife plunge into his back.”

As another kitchen employee ran to get the police, the two men fell on the ground in a bloody struggle.

Yamaguchi arrived with his partner, yelled “Police,” pulled his gun and ordered the men to stand. The chef did, but the best the wounded assistant could do was crawl weakly forward.

The chef took a pot from the stove, scooped it into a deep fryer and threw the oil toward Noy, hitting both him and Yamaguchi. He immediately repeated his action, but stopped when instructed to by the other officer.

Yamaguchi received second- and third-degree burns on his face, arms, torso and neck, and lost some hearing due to eardrum damage.

The officer normally would have been barred from relief because of the firefighter’s rule, under which police officers or firefighters generally cannot recover for injuries sustained in the line of duty and instead have their damages paid by workers’ compensation.

Exception Cited

But Yamaguchi, and the City and County of San Francisco, argued that he came under the exception set forth in Civil Code Sec. 1714.9 for “willful acts causing injury” to an officer or “lack of or want of ordinary care—[w]here the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer.”

Ragan agreed, and declined to instruct the jury on the firefighter’s rule because to do so, he said, would be misleading in view of the applicable exception. He also declined to instruct on vicarious liability, ruling that the restaurant owners were responsible as a matter of law. The only question left for the jury was liability and damages—which the jury put at $1.2 million.

A new jury should get a chance to decide whether the owners really should have foreseen their chef’s rampage, given the atmosphere and stress of a commercial kitchen, the appeals court said.

Stevens noted that imposing vicarious liability would have unclear public policy implications.

“[H]olding restaurant owners liable for injuries arising out of an employees’ attack on a coworker may well encourage them to investigate and resolve simmering workplace disputes, and perhaps discipline or terminate certain employees,” the justice said. “It is difficult to say, however, what a restaurant owner could do to assure its cook does not throw hot oil on a police officer, particularly where the cook has shown little inclination toward violence.”

The case is Yamaguchi v. Harnsmut, A095590.


Copyright 2003, Metropolitan News Company