The Evil Waiter Case

BY LUIS E. CHIESA, 69 U. Miami L. Rev. 161 (2014).

Introduction: The chef at a restaurant rings the bell signaling to the wait staff that food is ready to be taken to a table. The waiter diligently walks to the kitchen and picks up the plate. It is an exquisitely prepared filet mignon with mushroom wine sauce. Alas, something is not quite right with the dish. The coloration of the mushroom sauce is off. Since the waiter is pursuing a doctoral degree in biology and chemistry, she quickly concludes that the mushrooms used for the sauce are poisonous toadstools capable of causing death if consumed by humans. Nevertheless, she decides to take the dish to the table. She reasons that it is not a waiter’s job to check food for poisonous substances. Upon reaching the table, she asks, “who ordered the filet mignon with mushroom wine sauce?” A hungry patron raises his hand while replying, “me, me!” The waiter gently places the plate in front of the hungry patron. With a “bon app´etit, monsieur,” she leaves the area and goes back to the kitchen to pick up a dish for a different table. The hungry patron eats the filet mignon. He dies several minutes later from mushroom poisoning.

Did the waiter kill the patron or did she merely let him die? More specifically, is the waiter liable for murdering the patron or for failing to rescue him? If the correct answer is the former, she will likely be sentenced to a term of imprisonment that may range anywhere from ten years to life imprisonment depending on the jurisdiction. If, however, the waiter merely failed to rescue the patron, she will not be punished at all in the vast majority of American jurisdictions.

This essay argues that current legal rules inappropriately force us to choose between describing the conduct of the waiter as either an act that gives rise to murder liability or an omission that gives rise to liability for failing to rescue. The moral universe is more complicated than this. Some courses of conduct share morally relevant features of both acts and omissions. I call such courses of conduct “actmissions” and argue that their most salient feature is that they are more blameworthy than omissions but less blameworthy than actions. Building upon this theory, this essay suggests that the conduct of the evil waiter is best described as an “actmission” that is more blameworthy than a mere failure to rescue the patron, but less worthy of condemnation than actively killing him. As a result, the appropriate punishment that should be imposed on the waiter is less than the punishment authorized for murder, but more than what is authorized for failures to rescue. This, in turn, exposes an important shortcoming in American criminal law. Instead of artificially trying to force conduct into the “act” or “omission” categories, the interests of criminal law would be better served by acknowledging that there are courses of conduct that are partly active and partly omissive and, therefore, deserving of less punishment than purely active conduct but more punishment than entirely passive conduct.

The argument proceeds in two parts. Part II of this essay considers whether the conduct in the Evil Waiter Case is best described as an act or an omission. After finding that describing the evil waiter’s conduct as either an act or an omission is wanting, it is argued that the Evil Waiter Case presents a course of action that is both active and omissive in morally relevant ways. Therefore, it presents the signature structure of what this essay calls an “actmission.”

Part III of this essay fleshes out the implications that the Evil Waiter Case has for American criminal law. More specifically, it explores whether it is best to replace the act/omission distinction with a sliding scale that allows decision makers to place conduct along a continuum that goes from fully active to purely passive conduct. Adoption of a sliding scale approach to human conduct would more accurately capture the moral complexity of the Evil Waiter Case and other fact patterns that share a similar structure. It would, for example, make better sense of so-called “double prevention” cases in which a person engages in an affirmative act that prevents another from preventing a particular harm. Like the Evil Waiter Case, double prevention cases share morally relevant features of both acts and omissions and thus resist classification as purely active or purely passive conduct. Furthermore, using Judith Jarvis Thomson’s famous violinist example, I will argue that abortion cases feature neither purely active nor entirely passive conduct. Rather, abortion presents a case in which a failure to provide sustenance is accomplished by way of an affirmative act. As such, abortion cases lie somewhere along the sliding scale between fully affirmative and completely passive conduct.

Although replacing the act/omission distinction with a sliding scale approach to human conduct would better describe the full import of conduct, such as the conduct presented in the Evil Waiter Case, double prevention cases, and abortions, it would do so at great cost. Adoption of a sliding scale of human conduct is ultimately unattractive because of the ill-defined nature of the sliding scale inquiry would make it difficult for the citizenry to know ex ante whether their conduct will be considered an act, an omission, or something in between. This may unconstitutionally deprive defendants of fair warning. While this provides a decisive argument against the criminal law’s adoption of a sliding scale approach to human conduct, it does not foreclose the possibility of recognizing actmissions as an autonomous category of human conduct alongside acts and omissions. Doing so would better account for cases like the Evil Waiter Case, double prevention cases, and abortions. Moreover, it would do so without depriving defendants of fair warning. American criminal law would thus be well served by replacing the rigid act/omission distinction with the richer act/omission/actmission tristinction….Full Article.

Recommended Citation: Luis Chiesa, The Evil Waiter Case, 69 U. Miami L. Rev. 161 (2014).



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