Yesterday, I had what I’m convinced is a universal law school experience.
Last night, a classmate walked into the atrium outside our Torts class carrying a King Cake. That day at work, one of his clients (from New Orleans) had sent it to him as a thanks for his hard work. Some of us (including me) weren’t sure what a King Cake was, but quickly learned that it “is a ring of twisted bread similar to that used in brioche, topped with icing or sugar, usually coloured purple, green, and gold (the traditional Carnival colors) with food colouring.” The cake contains a trinket, most commonly (since 1950, at least) a small plastic baby. Whoever gets the trinket in his or her piece of cake, gets the privilege of being king of the party or has to bring the cake next year (or any number of traditions depending on context).
Anyway, you see where I’m going. One by one our classmates, when they heard the backstory of the King Cake, asked, “what if you bite into it and break your tooth.” To this, the owner of the King Cake proudly pointed out, “That’s why they printed this disclaimer on the packaging.” Clearly, he had thought of it too and checked it out.
Later that night, I explained to another classmate about the cake, what it was, why the guy brought it. He said, “What if someone breaks a tooth?”
Welcome to a new way of thinking where the first question is not “what does it taste like?” but “can the baker get sued for sticking a plastic baby in it?”
Given the delicious nature of the King Cake, and the fact that the classmate in question was unwilling to share, do his action represent a tort? Intentional infliction of emotional distress perhaps? What if the presence of a King Cake outside of the usually expected context for delicious pasty resulted in recovered memories of childhood abuse for another classmate, whose father was a baker? Do they have a cause of action? Against who?
I think I liked life better when King Cake was just King Cake.
I was willing to give the classmate a break for not sharing. But since you bring it up, I definitely think you could prevail on a claim for IIED. Clearly said classmate’s conduct was intentional and extreme, was meant to cause severe emotional distress, and said conduct was the proximate cause of our severe emotional distress.
Since yesterday was the first time I’ve ever “seen” King Cake, I’ve never known a time when King Cake was just King Cake. To me, it’s just a gooey, sugary lawsuit waiting to be filed.