The restaurant said it never knew he had TB. The court said that misses the point
A Florida appeals court revived claims that a restaurant let a visibly sick server keep working - the illness turned out to be tuberculosis.
Two diners who ate at an upscale Palm Harbor restaurant in late 2016 will get another shot at their lawsuit after a Florida appeals court ruled that a jury, not a judge, should decide whether the restaurant should have kept a sick worker off the floor.
The Second District Court of Appeal issued its decision on July 8, 2026, reversing summary judgment for the restaurant and its part-owner and manager and sending the negligence case back to the trial court. It left in place the judgment favoring the server himself, since the plaintiffs did not challenge that part on appeal.
The story, drawn from depositions in the record, is a familiar workplace one. A server first sought care for cold or flu symptoms in late September 2016 and got antibiotics. The cough lingered. He kept working through the fall and left in January 2017 after a dispute over tips. In March 2017 he tested positive for tuberculosis, and the Florida Department of Health opened an investigation. A few employees at the restaurant and at his next job later tested positive too.
The two plaintiffs had dined separately, one in November and one in December 2016, and both were diagnosed with TB in 2018. They sued the restaurant, its manager and the server, arguing the restaurant knew or should have known the server was contagious and let him keep serving customers anyway.
A trial judge threw the case out, reasoning that the evidence showed at most that the server had "cold or flu symptoms" and that the plaintiffs could not prove the restaurant knew he specifically had TB.
The appeals court saw the legal question differently. The duty, it said, does not turn on whether the restaurant knew the server had TB. It turns on whether the restaurant should have known he had a contagious disease. A persistent, obvious illness can be enough.
That framing is what makes the case worth an HR reader's attention. The court pointed to a Florida food-service rule barring anyone with a communicable disease or acute respiratory infection from working where they might transmit it, while noting the rule illustrates the risk but does not by itself create a basis to sue.
On the facts, a coworker testified the server "was clearly unhealthy" and looked sickly "for weeks," and the record showed a cough that ran nearly three months in a small workplace. From that, the court held, a jury could find the restaurant should have acted - for example, by keeping the worker home until a doctor cleared him.
The court also faulted the trial judge for weighing witness credibility, which it called a jury's job rather than a judge's at this stage.
Nothing has been decided on the merits. The appeals court did not find the restaurant negligent or liable. It held only that genuine factual disputes remain, so the case must go forward.
