Squeezed on:

Wendy’s, Toilet Paper, and Negligent Infliction of Emotional Distress

When the moment comes, I think it’s safe to say that most of us would prefer not to be in a public place, especially a fast food restaurant. The moment came for Henry Chai in a Wendy’s Restaurant in Montgomery County, Ohio. Now, as fast food goes, I like Wendy’s. I don’t want to believe that little Wendy, with those cute red braids, would allow this to occur. And remember, these were just allegations.

There was no toilet paper! Mr. Chai had to use his handkerchief! When the nightmare ended, Mr. Chai did what I think most of us would – he sued Wendy’s, seeking

$2.00 for the loss of a handkerchief, $5,000 ‘for the unreasonable risk to his health,’ $2500 ‘for humiliation and negligent infliction of emotional distress,’ and $5000 in punitive damages for Wendy’s ‘wanton act of failing to provide toilet tissue in contravention of the Ohio Food Services Rules.’

Wendy’s lawyers hit the law books, then filed a one sentence reply to Mr. Chai’s complaint: “Hahahahahahahahahahahahahahahahhaha.” Actually, they asked the court to dismiss the claim “for failure to state a claim upon which relief can be granted.” To Mr. Chai’s horror [don't worry, he appealed], the court agreed.

The Court finds beyond doubt that the Plaintiff can state no cause of action upon which relief can be granted. The entire complaint consists of the Plaintiff’s frustration and inconvenience caused by the temporary omission of toilet paper from the men’s restroom area… The plaintiff had several alternatives and his lack of ingenuity caused an alleged $2 loss. This Court has held a scheduling conference [oh to be a fly on the wall for that one] and has considered the facts set forth in the motions and having spent adequate time reviewing the allegations and facts brought to the Court’s attention, this Court finds that the Plaintiff is not entitled to proceed further with this action.

Well, this did not sit well with Mr. Chai, so he appealed. And what do you think happened?


He won! The Ohio Court of Appeals held that, if he proved the facts as he alleged them in his complaint, he would be legally entitled to money damages. Judge Wilson stated that

It may be that the plaintiff’s lawsuit is frivolous, and that his chances of being successful ultimately are practically nil; however, the complaint should not have been dismissed with prejudice [prohibiting Mr. Chai from refiling it later] at this stage of the proceedings.

Victory! But cases of this magnitude are rarely unanimous. Judge Kerns weighed in with this stinging dissent: “… after completely exhausting my powers of imagination, I have been unable to fancy any set of facts from the real world upon which reasonable minds might differ in analyzing the allegations of the complaint in this case.” Well sir, perhaps one must sit in Mr. Chai’s shoes to feel his pain.

I’m just glad Mr. Chai had a handkerchief. The decision may be read in its entirety at 1987 Ohio App. LEXIS 5922.