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39. The restaurant's best argument in response to the patron's suit would be that
The patron sued the restaurant for damages. He introduced testimony from a health department official that various health code violations had been found at the restaurant both before and after the patron's dinner, but that none of the restaurant's employees had signs of bacterial infection when they were tested one month after the incident.
Eventually, the patron consulted his doctor, who found that the patron was infected with a bacterium that can be contracted from contaminated food. Food can be contaminated when those who prepare it do not adequately wash their hands.
Later that evening, the patron had an upset stomach. He slept well through the night, went to work the next day, and ate three meals. His stomach discomfort persisted, and by Tuesday morning he was too ill to go to work.
A patron ate a spicy dinner at a restaurant on Sunday night. He enjoyed the food and noticed nothing unusual about the dinner.
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A is incorrect. This is an ineffective defense because it may not include anyone who was not aware of why they might have been ill. The best defense is to show that the patron has not established causation.
B is incorrect. An employer is responsible for enforcing its safety policies and will be vicariously liable if, while in the course of the employer's business, a negligent action of its employee causes an injury.
D is incorrect. The patron did not knowingly undertake to eat food that he was aware would cause him illness. At most, this argument would go to damages.