Actionable Food Poisoning

Food poisoning lawsuits may require special proof to establish the liability of a restaurant or other food service provider. This article focuses on food poisoning that involves toxins unintentionally formed by biological processes (as opposed to intentional food poisoning).

The symptoms of food poisoning depend on the type of poisoning, and may include fever, nausea, vomiting, chills, and diarrhea. Proving that one became sick simply after eating food is not nearly enough to establish food poisoning. Other diseases, such as influenza, have similar symptoms to food poisoning. You must prove additional facts to establish the cause of illness.

Establishing Liability for Food Poisoning

A lawsuit must generally be filed within a statutory period (often one year), which varies among jurisdictions. What a party must demonstrate in order to recover damages for food poisoning also varies from state to state. However, for claims based on the negligence of a defendant, certain principles are common and, as adapted for food poisoning cases, may include the following:

  • The defendant food provider owed a duty to the injured parties (i.e., as patrons of the defendant’s a restaurant).
  • The defendant beached that duty by serving food containing specific organisms that made the injured parties ill.
  • The claimants were injured as a result, i.e., they became ill.
  • The food from the defendant was the direct (“proximate”) cause of the injury or illness.

Making the Connection to Food Poisoning

There are practical problems in establishing negligent food poisoning. It must be demonstrated that the food poisoning was caused by conduct of the defendant (through evidence such as a bill from the defendant’s establishment, medical bills, etc.), rather than mere coincidence. Food poisoning may be proven if a sample of the food is available for testing (e.g., the claimant took home a “doggie bag”). If you consumed all of the food, there may be nothing left to test for contamination, and even if the food was not completely consumed, by the time the symptoms appear, any leftovers may have been discarded.

In light of these difficulties, courts may accept circumstantial evidence to establish a reasonable inference of food poisoning because of the defendant’s negligence, without actual proof that the food poisoning was caused by the defendant’s food. This inference of causation by the defendant may come from expert medical and lay testimony (i.e., testimony by non-expert witnesses about the circumstances of the incident) eliminating other rational explanations.

Cases of Food Poisoning

Food poisoning injury can have serious, life changing consequences. In 2004, a young medical student in Illinois became ill as a result of salmonella (the most common form of food poisoning according to a 1999 study), contracted at a well-known national food chain restaurant. The restaurant had elected to remain open despite the fact that it had no hot water on one day, and no water at all the next day. The resulting sickness and hospital stay caused the student to miss exams and to fall so far behind in her studies that she had to retake courses before the school allowed her to continue the curriculum. When the restaurant was asked to pay her substantial medical bills pending a settlement, it refused to even respond.

In November 2003, patrons of a restaurant in Pennsylvania, also part of a restaurant chain, became ill with “hepatitis A”. Authorities eventually traced the source of the illness to green onions from Mexico, which were used raw in the salsa. Before the outbreak subsided, at least 640 people fell ill with hepatitis and four people died; it was the largest outbreak of hepatitis A in U.S. history. The restaurant filed for bankruptcy protection under Chapter 11, in anticipation of claims and lawsuits.

If you have become ill and you think food poisoning is to blame, please contact the Los Angeles injury lawyers at Carpenter, Zuckerman & Rowley, LLP today for a free consultation.

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