Food Poisoning – Restaurant and Food Supplier Liability

Personal Injury From Food Poisoning

You’ve had a wonderful meal at your favorite restaurant. The shrimp scampi was exquisite. Three hours later you are wrapped around your toilet bowl sicker then sick. You are upset and would like to know your legal rights, but you think that food poisoning is simply too small a case for which to take legal action. Perhaps. The following information will help you determine whether it makes sense for you to pursue your legal rights in these types of cases.

The federal government has identified more then 300 different types of food poisoning. The degree and extent of illness from these different types depends on your age, health, and the type and amount of tainted food that was ingested. Common symptoms include dizziness, diarrhea, nausea, intense vomiting, headaches and severe abdominal pains.

According to federal estimates there are over 70 million national cases of food poisoning every year. Almost a half-million food poisoning cases result in actual hospitalization and nearly 6000 of these cases result in death every year.

Legal Theories Involving Food Poisoning Claims

Food poisoning lawsuits are mostly based on the laws governing product liability and general negligence. Product liability consists of numerous component legal theories upon which liability may be imposed upon a defendant or group of defendants. One such legal theory is strict liability and it is a favorite among plaintiff’s lawyers because it does not require proving conscious fault by a defendant.

Strict Liability In Food Poisoning Lawsuits

Strict liability has been adopted by most if not all states. The distinguishing feature of strict liability is that the party bringing the lawsuit, the plaintiff, does not have to prove conscious fault, negligence or intentional wrongful conduct on behalf of the defendant restaurant or supplier in order to legally prevail. Notwithstanding the plaintiff can still establish liability against the defendant based on simple negligence. That is, the defendant failed to take reasonable and necessary precautions to ensure the food sold was safe to consume and did not pose an unreasonable risk of injury to guests of the restaurant.

In strict liability cases, you only need to prove that the food you ingested was contaminated, that the contamination was a substantial factor in causing your illness and finally, you obtained the subject food from the defendants business.

Another advantage of strict liability in food poisoning cases is that you can legally hold the suppliers of the tainted food legally liable for your injuries so long as your lawyer can prove the defendant was in the chain of commerce with respect to the tainted food.

Negligence In Food Processing

In addition to a legal claim based on strict product liability, or in cases or states in which strict liability is no longer available as a legal basis for a food poisoning, you may still be able to argue that the defendant(s) acted negligently in preparing, processing and or supplying the tainted food product that made you sick.

In order to prove negligence, you must show that the defendants were not reasonably careful (failing to exercise reasonable care) in either the processing, production or distribution of the subject food product that in fact made you sick. This would include negligence in the food inspection process as well.

Breach Of Warranty – Uniform Commercial Code

The Uniform Commercial Code has been adopted by the majority of states and imposes liability under a special legal theory of commercial contract law known as implied warranty of merchantability. The legal theory is based on the premise that there is an implied contractual right that the food purchased by a merchant in exchange for payment is, at the very least, not tainted – even if this promise was not expressly negotiated between the merchants. This is also understood as the warranty of merchantability, which can impose a form of commercial strict liability on all parties that were in the chain of commerce relative to the transfer and sale of the tainted food products.

Proving Your Food Poisoning Claim – State Law

Under state law the victim of food poisoning will have to prove three facts in order to prevail in court. The first is that the subject food was in fact tainted, second, the tainted food actually made you sick, and third, you can prove that you actually purchased the food from the defendant.

Establishing a causal connection between the tainted food and the defendant is facilitated in cases in which the state had already initiated a health investigation into the defendant’s food preparation practices. The lawyer you retain to help you prosecute the case will likely be able to arrange for the necessary scientific testing to determine the cause of the taint and the causal connection with the plaintiffs illness.

One way to prove you purchased the food from the defendant is by producing the food receipt. Absent such proof, you may even go as far as having your stool tested for traces of the subject taint.

Statute of Limitations On Food Poisoning Cases

Under state law we are discouraged from sleeping on our rights rather then taking immediate action to protect and assert our rights. This means if you have a legal claim you better intend on pursuing it or risk losing the right to bring the claim later.

Another important point is that different types of legal theories have their own specific limitation terms for purposes of when one must legally file a claim in order to keep it viable. For example in most states, the statute of limitations to bring a food poisoning lawsuit based on negligence is usually two years. Your lawyer will know the exact amount of time you have to file such a lawsuit.

If the defendant is a public entity, such as a school district (school cafeteria taint) then you will likely also be required to comply with the states public claim process, which normally have a very short fuse with respect to filing and notice deadlines. In some states for example, the claim-filing deadline is just six-months from the date the action is said to have accrued, which is the date of your food poisoning.

Multiple Action Lawsuits – The Class Action In Food Poisoning Cases

Sometimes, food taint is so widely dispersed throughout a population that it is both more time and cost-effective to join a class action rather then bringing your own claim for damages through a single legal action. If you are one of a large number of victims of an outbreak of food poisoning, you may be able to band together and file a class action lawsuit. If not, you can decide to opt-out of the class action and pursue your legal remedies individually.

One reason for not joining or opting out of a class action is that the financial recovery in such situations is usually less then what one would recover in an individual action. Alternatively, if your case is small and you do not want to be involved in a complicated and drawn out lawsuit involving many depositions and a significant outlay of litigation costs, a class action might be a more strategic option for you to choose.

E. Coli Food Poisoning

Many of these large class action lawsuits involve public outbreaks of E. Coli. In 2008, the Centers for Disease Control and Prevention estimated that every year nearly 2000 Americans are hospitalized from this condition, and about 60 of them actually die as a result of E. Coli food poisoning.

E. Coli infection can also cause serious health problems including kidney failure called hemolytic ureic syndrome (HUS). E. Coli outbreaks are often linked to undercooked meats and unsanitary cooking and food preparation conditions. Common symptoms of E. Coli infection could include bloody diarrhea, abdominal cramps and sever vomiting.

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