SW Legal studies in Business

When Tortfeasor Hides Relevant Information, Statute of Limitation Tolls
Description

Kentucky high court held that because a restaurant hid information in bad faith about a disease outbreak traced to the restaurant, the statute of limitations on tort actions, brought by patrons who became ill, tolled until the information became known.

Topic Torts
Key Words

Negligence; Product Liability; Virus; Concealment; Tolling; Restaurant

C A S E   S U M M A R Y
Facts

Emberton ate at a Red Lobster restaurant. A month later he became sick and was hospitalized. He had hepatitis A, a viral infection of the liver. He had no idea where he contracted it. A worker at the restaurant was the carrier. Later investigation showed that the restaurant did not enforce the rule that employees must wash their hands after using the restroom. The worker admitted that she did not wash her hands, she handled food with bare hands, ate ice cream from a carton, and drank milk from a container. The owner of the restaurant ordered all employees not to discuss the fact that a worker was infected and did not report the fact to the state health department as required. Because of the outbreak of the disease, the state investigated and tracked 13 cases to the restaurant, but chose not to publicize that fact. The health department talked to Emberton and knew he had eaten at the restaurant, but did not tell him what had been learned. His recovery took seven months. Three years later, he heard of the likely cause of his illness and sued the restaurant. The jury awarded him medical expenses plus $225,000 for pain and suffering. The appeals court reversed, holding that Emberton failed to sue within the one-year statute of limitations for such actions. Emberton appealed.

Decision

Reversed; trial court judgment reinstated. The statute of limitations did not run because the information about the disease was concealed in bad faith by the restaurant. Emberton cannot sue the health department because of sovereign immunity; the health department has discretion as to whether it will release information or not. However, when the restaurant hid the information, the statute of limitations tolled until the information became known. So Emberton had the right to sue and the damage award was not excessive given the length and severity of his illness.

Citation Emberton v. GMRI, Inc., ---S.W.3d--- (2009 WL 3517562, Sup. Ct., Ky., 2009)

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