Ricky:

Terrific review. Congrats!

Chuck

Thanks, Counselor Chuck.

High five

Hey Lax,

I've spoken with Ciolli before, he's not a bad guy, it's the bottom feeders that use his sites that are the problem. Ciolli was involved in a lawsuit with some Yale students over Auto Admit.com, which was his other site. If you read Above The Law, they've got pretty extensive coverage on it; and the motions from the case are actually pretty good summaries of CDA section 230 liability immunity.

On the other hand, I know the feeling, since I took a more public role with dealing with Wiki stuff, I've had a few big forums trying to trash me. Turns out though, one of them got hacked today and lost their whole database! Karma's a bitch!

I'm not sure if Ciolli was involved with the defamation stuff against you, but he's got enough website based things going on that I don't know whether that rumor you heard was true about a firm offer. He's a pretty popular target himself amongst bored law students.

Hi again, Counselor Dan.

I didn't mean to suggest that Ciolli was involved in anything having to do with me. I doubt it; sounds like he has more important things on his plate. Whether the charges against him were valid or not, it seems like they might have scared some people in the law school blogging/discussion forum community--that's the point I was trying to make. But I'm glad you left this comment so this matter could be clarified.

Yeah, well, it's important that law student bloggers not be intimidated by defamation. We're lawyers, or soon-to-be lawyers. We're going to be hated by many anyway. I sat through my dentist talking about how personal injury lawyers are the worst kind of scum today (my dad is a personal injury lawyer). While pondering how I I could stab her with her own dental picks, I reminded myself that as lawyers we can't flip out when people say stupid shit, but we also don't have to lie there and take it when its abusive.

Sir, given your propensity for getting yourself into unsavory situations with wait-staff (pun intended), I am SURE that you were not in the right to demand that you not be required to pay for the baked potato upgrade.

If we take this a little further, you could order anything on the menu and when the bill comes, claim that you didn't see the price of your dinner written there and that you just assumed it was free.

I'm not sure if a menu constitutes some sort of legal fair notice, but I'm pretty sure that someone would have to specifically state that your potato cost no extra money for you to be right in this situation. Even if the waitress said she wasn't sure, since it's written on the menu it seems pretty clear that any rational person is expected to pay the extra cost.

Do you expect your server to inform you of the exact cost of your meal every time you order from a menu? You order the burger and your waitress asks you "Are you sure? That's going to cost you $15..."

Yet none of this means that I'm surprised that you got yourself into trouble yet again Laxy, you charmer. Just as long as you don't get me kicked out of any more restaurants, I encourage you to test your limits whenever possible. Go get 'em.

Ryan Scott, Esquire

You and the waitress were both right, the manager was wrong.

The waitress was right to get her manager involved, because she shouldn't have to deal with some guy who didn't bother to read the menu.

You were right because if they want you to read something they should make it obvious, because who reads the whole menu? No one. This is especially true for a bullshit policy where they lose no money for the substitution. It's not like you asked for onion rings or vegetables instead. You went from one (1) fifty cent ($0.50)potato baked for fifteen (15) minutes to one (1) thirty cent ($0.30) potato fried in a nickel's worth of oil for two (2) minutes.

The manager was wrong because he escalated a simple misunderstanding into a confrontation and became accusatory. A simple, "Ok, I can fix that, and now you know for next time." would have been the right answer from him.

As an six(6) year veteran of the food service industry I feel very confident in that assertion.

There are two different ways to approach this problem: 1) from a service perspective and 2) from a legal perspective.

From the service perspective, I agree with Mr. Pirates. The motto in the food-service industry is supposed to be: "The customer is always right." The manager did a poor job of following this motto by creating a confrontational situation over $2.50. He might possibly have alienated a customer and created negative word-of-mouth campaign over an inconsequential charge. He should have explained the charge, and then offered to remove it this once because of the confusion.

From a legal perspective, I am not so sure. If I had to make an uneducated guess (I haven't yet stepped foot into law school), I'd say the restaurant was right. If the charge was in writing on the menu with the rest of the prices, so long as it wasn't in teeny writing or put in a very inconspicuous location, I would think you are responsible for the charge. Pay up, Counselor Lax! You still want fries with that?

Procedural unconscionable!! Unreasonable expectation of a thorough read of a menu!!! Adhesion language!!! Fine print!!! Coercive behavior by the manager!!! Social policy favoring consumers!!! Lack of meeting of the minds!!! Mutual mistake!!!

Rick WINS!!

Ok, Counselor Pirates, I'll bite. Should the restaurant be forced to verbally reiterate every charge on the menu as the customer orders? What if a customer misreads the price of a regular menu item? Is the manager then expected to change the bill to compensate for the error because they did not see the charge? Is it always the responsibility of a restaurant to make sure the customer understands every charge? "Sir, are you SURE you want that fish sandwich? Do you understand that said fish sandwich will cost $15? Do you understand that the restaurant will demand payment in the amount of $15 upon completion of your meal? Please sign here if you understand and agree to these terms."

Shouldn't Mr. Lax have realized when he was making a substitution that there could potentially be a charge for such a substitution? Isn't a substitution charge standard practice for many restaurants, and therefore common knowledge among restaurant patrons? I believe the burden was on Mr. Lax when he deviated from the menu item as it was listed, and it was his responsibility to read the menu or inquire about the restaurant's substitution policy at that time.

(Once again, I haven't gone to law school...yet. I could be totally wrong. Ask me again in 3 years.)

Off topic a bit.. I went to the restaurant where I like to go for a big veggie burger. The air conditioning was blowing so hard that I asked if I could move to one of the empty tables where the fan wasn't blowing right on me. There were about four empty ones near me. The waiter said "First I have to ask the hostess." When he returned he wanted to take me somewhere other than the nearest booth, but I wanted the nearest booth. He finally relented, but not without telling me "It's complicated."

@ Linda,

Filling seats in a restaurant is actually complicated. You might have been moving into a closed section, or switching from one servers section to another. They may have been reserving that booth for a guest who had previously requested a booth. Or they may have needed to fit an odd sized party in a particular spot because of the floor layout.

It really is complicated. At some of the larger restaurants, like Cheesecake Factory, the hostess who selects where to seat people is a specially trained person called a "filler". It's the top hosting job you can get. Surprising, huh?

You are in fact wrong, and you'll understand why in a semester, not three years. The restaurant doesn't need to go to excessive lengths to notify patrons of their policies. They just have to take reasonable efforts. The more extreme their policy is, the greater the efforts need to be in order to be reasonable. If a price is listed on a menu, the waiter doesn't need to remind the customer. A customer reasonably expects food to cost money, and will look for the price on the menu without prompting.

A substitution charge for side dishes isn't common for lateral trades. Potato for potato doesn't cost the restaurant anything, and so is usually a free trade. A side dish upgrade often costs more money, because they cost the restaurant more money. Going from french fries to onion rings is a classic example of a cost increase side dish. It is reasonable to assume that if you switch from a basic side dish to a premium side dish that you'll pay a premium for it.

Charging $2.50 for a lateral substitution is excessively high, and certainly not the industry norm. My guess is they do it to discourage people from subbing, because it's a pain in the ass when people try to customize their order. Because it's not a common industry wide practice to charge for changing your side dishes, a customer could not reasonably be expected to read through the menu in order to find that policy. After all, when is the last time you read a menu cover to cover? Most people just find a food description that interests them, and order it.

I would imagine that prominently placing the substitution information on the menu would suffice, but the better practice for the restaurant is to alert people that unlike most restaurants, they do charge a fee for subbing out sides. "Just to let you know, we charge $2.50 to change sides" takes about three seconds to say and avoids any misunderstanding. At my old restaurant, if someone upgraded a side dish that would cost more money, our company policy was to notify them of it. If we didn't, the customers would get mad to see an additional dollar on their bill.

Another common policy is to have in the food item description any up-charge policies. For instance "Fish Sandwhich - Grilled haddock on brioche with tartar, tomato, lettuce with a side of homestyle french fries (substitution extra)" Putting it in the food description ensures that a reasonable person will read it, because the average person will have read the food description if they were interested in the food item.

So that is why the manager was wrong.

Counselor Ryan. Why are you acting like it’s so common to assume a substitution. I ask for substitutions all the time and sometimes they’re free, and other times the server tells me they cost extra, and I accept or reject accordingly. This was the FIRST TIME in MY LIFE I’ve ever been surprised to see that a substitution cost extra. Yes, I DO expect servers to inform me of extra costs. If it costs five more dollars to get my steak medium-rare, I want to know.

Counselor Pirates, that’s a good point about the potatoes costing about the same. Plus, baked potatoes have no oil/frying costs. Just put the thing in the over, you know?

Counselor Anonymous, you’re right about the service thing. I don’t know if this counts as a word of mouth campaign…but it is a blog, which are kinda like the WOM campaigns of the 21st century. On that note, the restaurant was Tavern by the Park.

And Counselor Pirates, as for your last reply…I’m starting to think you could teach a whole course on restaurant law. Not a law school class, but something for undergrad. Sounds like you’ve got Contracts covered…but you could easily slip some torts in there too. And I’m sure you’d find a way to put the rest of the subjects in there too. Or maybe a book…hmmm…really, I think there could be something here…

I don't think it is safe to assume that the french-fries cost the restaurant the same to cook as the potato. For starters, baked potatoes require very little effort to cook. You throw a bunch of potatoes in an oven for a few hours. Done. If the restaurant doesn't serve fries often (if it is up-scale, this is probably the case), they probably don't have them prepared. Thus, the restaurant has to have an employee stop what they are doing to cut and cook the fries so that they are as fresh as possible. The restaurant must pay the employee for this extra time, thus the up-charge.

I also believe the argument about the amount of the up-charge isn't valid. $15 for a fish sandwich probably isn't the industry norm, either. If you are in a more expensive restaurant, you expect prices to be higher. It doesn't sound like Counselor Lax was dining under the golden arches that evening.

(For the record, I'm just playing devil's advocate arguing the restaurant's side. I believe my first argument about service is the correct one. I hardly think a french-fry substitution should have caused such a ruckus by the manager. I also agree the waitress should have mentioned the additional charge to begin with.)

Right, the point is, they probably cost about the same, but if they don't the fries cost more. Which works in my favor.

But alas, the issue isnt' really how much the things cost to make...well, not unless we took this to a court of equity...or the restaurant wanted to countersue me for restitution.

Hospitality Law is an actual thing. There are some Hospitality Management Majors around the nation. I was surprised the first time I heard about it, but when you think about it, it makes sense.

The biggest area of applicability is in the casino industry and cruises. But it filters down to hotels, resorts, and ultimately regular ol' restaurants. It's a fascinating area of the law and industry. The service industry is based on the tension between fulfilling the purpose of the industry (to serve), and to make as much money as possible.

If you want to write a Hospitality Law book, I'm down.

The Pirates Guide to Lax Hospitality Law. It would be a best seller from day one.

Contract of adhesion. Obviously. You must eat. Therefore, they are in a position of undue advantage over you. The terms of the menu are unconscionable. You should demand the entire meal free.

p.s. lawschoolblogger.com is down, but still showing up in google results.

-Dan
Wikilaw, where the Wiki World and the Law intersect.
http://wikilaw.blogspot.com

New Reader - Great dialogue to everyone - very clever. If I could add two questions related to restaurants and pricing, but not specifically on the baked potato topic. Here are the scenarios as short as possible:

1. Free Refills - Out to dinner, husband and cousin thirsty. Drinks their ice tea and diet coke. Waitress asks would you like another drink. They responds yes. No cost is ever mentioned or associated with the refills. This happens several times (the cups are small and they are parched, you get the picture) ... bill arrives and there are $20 ($2.50 each) worth of charges for refills. Should it be noted in the menu - "no free refills" or shouldn't the waitress have said "refills are an additional cost" or is my thirsty hubby and cousin supposed to anticipate that their drinks are worth $20 bucks.

2. The $75 item on the menu. Again out to dinner, waiter comes around and recites the specials. There are several. No prices are given. My husband orders one - a seafood dish with lobster in it. The menu lists various pasta, seafood and meat items all priced around $20 (we are in Kenosha, Wisconsin here folks). When we get the bill, my husband's dinner selection was $75. Again, were we supposed to inquire about prices or is it fair to assume they would all be in the same price range or slighly more (not 3 times higher) than the regular menu?

Thoughts?

Refills - Tricky question. The key here is that she asked if you would like "another drink" and not a "refill". IF she offered a refill, a continuation of the same drink as it were, then I think the assumption would be that it is free. "Another drink" to me, implies that it is not the same drink, and thus not covered under the price.

Many restaurants note that there ARE free refills, so based on experience, I would say that "free refills" is not an industry standard. That being said, enough restaurants do free refills that from a "service" perspective, had you complained about the price, they would have been hard pressed to charge you for it.

Specials - Yes, if there is no price for a special, you may not assume it costs in line with the rest of the menu. Specials are just that... special. The burden is on you to ask what the price is.

Went out to dinner last night and when the waitress recited the specials, she also quoted the price. Not sure if it was because we were obviously young and probably not wealthy and the dish was at the higher end of the price range, or if it was restaurant policy.