Food poisoning and food contamination ("bad food") claims are what lawyers call product liability cases. Generally speaking, product liability cases can be challenging. That's particularly true for food poisoning and food contamination claims. If you have questions about your case, think about consulting with an experienced product liability attorney.
Food poisoning and food contamination both involve food, but that's pretty much where the factual similarities end.
Food poisoning is a catch-all term used to describe any illness caused by eating food tainted with a harmful bacteria, virus, or parasite. Common causes of food poisoning include:
Most food poisoning cases produce mild—though quite unpleasant—gastrointestinal symptoms that might last for a few days, perhaps up to a week. Severe cases, while rare, can lead to serious injuries or even death.
Here's a brief rundown of the most often identified food poisoning pathogens.
Norovirus. Also known as the "stomach flu" bug, norovirus is thought to account for about half of all mild food poisoning cases. It can infect both foods and drinks. Symptoms generally appear 12 to 48 hours after exposure and last for one to three days.
Salmonella. Salmonella is a group of bacteria found in undercooked eggs and meat, as well as unpasteurized milk and cheeses. Symptoms typically start one to three days after eating and will last for up to a week.
Clostridium perfringens. Clostridium perfringens bacteria often appear in bulk food preparations like buffets and cafeterias. They grow in warm beef, poultry, and gravy. Symptoms begin six to 24 hours after eating and will last for a couple of days.
Campylobacter. The most common bacterial cause of food poisoning, campylobacter infects an estimated 1.5 million people in the United States each year. It comes from undercooked poultry, unpasteurized milk, and sometimes tainted water. Illness is usually mild but in rare cases can be severe. Symptoms develop two to five days after infection and will last for two to 10 days.
Here's a list of the foods that most often cause food poisoning:
To win a personal injury case, you've got to prove what caused your injury. But in a food poisoning case, you can't see the bacteria or virus that's infecting your food. By the time you realize you've been poisoned, it's too late. Hours or days have passed since you ate the bad food, and you probably didn't bring home any leftovers.
The tainted food, critical evidence in a food poisoning claim, is long gone. Without that evidence, proving your case could be a problem. The restaurant will argue that if food made you ill, it came from someplace else.
So how do you prove what made you sick?
You'll have to rely on what lawyers call "circumstantial" evidence. For instance, did any other diners become ill after eating the same restaurant food you ate? If so, that's evidence of the source of your food poisoning. If no one else got sick, the restaurant will argue that its food wasn't the cause of your illness.
"Food contamination" refers to food that contains a foreign object like plastic, rocks, or metal. Contamination can happen at any point in the supply chain, meaning that producers, processors, transporters, wholesalers, or retailers might be to blame. Foreign objects can cause injury to the teeth, mouth, throat, and digestive tract.
Finding a foreign object in your food is gross, but it's not enough for a food contamination claim. You've got to prove that you ate a foreign object and that it caused you some injury. If you think you ate a foreign object, get medical attention right away. Sometimes, a foreign object will show up on an X-ray.
In any case, expect the restaurant to deny that it's responsible for the foreign object. It might claim that you planted the object or that another company in the supply chain is to blame. Check FoodSafety.gov to see if there's been a food recall announcement. Either way, you might need to hire a lawyer to help sort out who's legally responsible.
As soon as you're able, turn your attention to gathering and preserving the evidence you'll need to prove your bad food claim. Keep a journal to record what you ate and when, the symptoms you experienced, your treatment, and your recovery.
In a food contamination case, keeping the food shouldn't be a problem. Let others in your dining party see (but not touch) the foreign object. Take photographs showing the size and location of the object.
Don't allow wait staff to take the food, because they'll remove the foreign object. Ask for a carryout container, place the contaminated food inside, take it home and store it in your freezer. Contact your local health department to find out about reporting the incident and to see if there are other reports of contamination at the same restaurant. Check FoodSafety.gov for a possible food recall.
In a food poisoning case, if you happened to bring home leftovers, keep the food stored in your freezer. Contact your local health department to report your illness and ask about having the food tested for pathogens. Visit FoodSafety.gov for information about a food recall.
As soon as possible after you realize you've been poisoned, ask your doctor about testing to find out what made you sick. If you and the food both test positive for the same virus or bacteria, that's strong proof of your claim.
Tell your doctor when you ate the bad food and when your symptoms first appeared. Be sure to follow up with any testing the doctor orders. Ask if the doctor has heard of or treated any food poisoning or food contamination cases like yours within the past few days. If so, ask if those cases are related to the restaurant where you were served bad food.
Once you've been released from care by your doctor, be sure to order copies of the medical records and bills relating to your illness or injury.
If you're planning to pursue a food poisoning or food contamination claim, you'll want to know:
You certainly want to sue the restaurant that served you the food. But that's just the beginning of the list of possible defendants. Others include:
You (or more likely, your lawyer) will have to do some investigating to identify all of the potentially responsible parties.
In a typical bad-food product liability lawsuit, you can bring three types of legal claims:
In a negligence claim, you allege that the restaurant had a duty to act with reasonable care and that the restaurant breached, or failed to meet, that duty. You might claim, for instance, that the restaurant had a duty to cook your food according to recognized food safety standards, and that the restaurant negligently failed to meet those standards, causing you to become ill.
In a strict liability suit, you don't have to show that the restaurant was negligent or otherwise at fault. Instead, you must show that:
Note that "strict liability" isn't the same as "automatic" liability. You still must prove the elements of a strict liability claim. And the restaurant might raise other defenses, too. It might argue, for example, that your norovirus came from other food.
A "warranty" is simply a promise or guarantee that a product seller makes to a buyer. If the product doesn't live up to the warranty, the seller can be held liable for breach of warranty. The law recognizes both express warranties and implied warranties.
Express warranties are those a seller specifically makes to a buyer, orally or in writing. But even if the seller doesn't make an express warranty, the law implies certain warranties in a product sale.
For example, the law implies that the food you're served in a restaurant will be fit for human consumption. If the restaurant serves you food tainted with an illness-causing bacteria, it breaches that warranty and can be held liable for damages.
In negligence and strict liability cases against a restaurant, you can sue for compensatory damages. Compensatory damages include both economic (sometimes called "special") damages and noneconomic (sometimes called "general" damages).
Economic damages compensate you for medical expenses, lost wages, pharmacy charges, and similar out-of-pocket costs. Noneconomic damages are intended to make you whole for "intangible" losses like pain and suffering and emotional distress. Noneconomic damages are much harder to value than economic damages. Most often, your lawyer will use a formula to calculate them.
In rare cases, you might be awarded punitive damages if you can show that a defendant acted maliciously or was grossly negligent.
Note, finally, that the damages you can collect for breach of warranty are usually less generous than what's available in negligence or strict liability claims.
Class action lawsuits are a good option when there are lots of injured parties (called "plaintiffs") but each plaintiff has small damages. Bad food cases typically satisfy the second requirement (small damages) but not the first (lots of plaintiffs). Most food poisoning and food contamination cases are isolated events, meaning that a class action lawsuit isn't possible. Even if there are enough plaintiffs, special class action rules mean that a bad food case might not be a good fit.
Most lawyers who aren't experienced in handling class action claims won't touch them—they're just too complicated. If you're considering a class action lawsuit, you'll need an experienced lawyer to handle the case.
The answer depends on at least a couple of factors, including
If you didn't save any of the food that gave you food poisoning, proving your case could be very difficult. The same is true if you saved the food but didn't get it tested, or if you weren't able to get to the doctor for testing to confirm what made you sick.
Absent that sort of direct proof, you're left with only circumstantial evidence. The restaurant (and any other defendants) likely will fight you every step of the way.
In any personal injury case, the nature and extent of your injuries—and your resulting damages—drive the value of your claim. The good news is that most bad food cases don't result in serious illness or injury. In a food poisoning case, for example, you're miserable for a couple of days, but that's it. The bad news is that if your injuries were minor and your damages are small, your claim doesn't have much value.
We've talked about the difficulties you might encounter in proving a food poisoning case. Even in a food contamination case, though, where you're likely to have the contaminated food, the restaurant likely will fight your claim. The last thing a restaurant wants is a reputation for serving food containing foreign objects.
You only get one opportunity to bring your food poisoning or food contamination case. Your best chance of success will come if you hire an experienced attorney to guide you through the process.