Torts Assignment


Rocky (The Owner) owned and operated a small diner where Cook (Vinny) and Waiter (Tony) worked. After closing one night Cook, (Vinny) called in sick for the following day.  Rocky (Owner) knew that an acquaintance, Caterer (Vito), owned and operated a catering business. Owner (Rocky) asked Caterer (Vito) to fill in for Cook (Vinny). Owner told Caterer: “I want you to run the kitchen for one day. I will pay you your standard catering fee. I just need somebody who knows what he’s doing.” Caterer agreed, telling Owner, “I’ll bring my own knife set, but I assume the kitchen is fully equipped.”


Rocky did not check Vito’s references. If he had, he would have learned that Vito’s business had once been shut down by the health department.


Vito went to Rocky’s diner and started to cook. Patron (Spongebob), a customer, ordered chicken wings from Waiter. Waiter gave the order to Vito.


A notice posted on the kitchen wall, entitled “Health and Safety Code Section 300 Notification,” stated: “To avoid food poisoning, all poultry products must be cooked at a minimum temperature of 350 degrees.” Upon observing that the oven was set at 250 degrees, Tony informed Vito that the oven should be set at 350 degrees. Vito responded: “Just worry about waiting tables, and leave the cooking to me.” Vito did not raise the temperature of the oven and removed the chicken wings shortly thereafter.


Tony served SpongeBob the chicken wings. SpongeBob ate the chicken wings and suffered food poisoning as a result.


  1. Under what theory or theories, if any, might SpongeBob bring an action for negligence against Vito, Tony, and/or Rocky, and:
  2. Taking into account possible defenses, (if any), What is the likely outcome?


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