Cox v. the Keg Restaurants US, Inc.

On November 1, 1991, Patrick Cox and Philip Whalen each patronized The Keg Restaurant. After The Keg served Whalen 10 drinks in two and a half hours, he assaulted Cox without provocation and inflicted permanent brain damage. Cox brought suit against Whalen and The Keg, and introduced evidence of Whalen’s blood alcohol content. The jury returned a verdict for Cox, finding Cox two percent at fault for failing to mitigate but not otherwise at fault, and assigning the remaining fault roughly equally between The Keg and Whalen.

The trial court found that Cox’s failure to mitigate was not the type…