Last updated: 12/16/2015
Outbreaks of food poisioning and food-related illness seem to pop up and make headlines at least a few times every year. In 2015, Chipotle grabbed a great deal of unwanted attention after separate E. coli and norovirus incidents were linked to a number of its Mexican food restaurants. Hundreds were sickened in several states, and 43 restaurants were shut down.
If you have been made ill by food poisoning, you may be wondering if you have a case. The answer will depend on the particular circumstances of your illness. For example, time delays between eating the food and onset of illness may make it difficult to pinpoint the food that made you sick. On the other hand, if a government health agency has linked a particular food you ate to an outbreak of food poisoning, your claim may be easier.
Here's what you need to know about food poisoning claims: what legal theories can form the basis for a lawsuit, how to prove your case, and who to sue. (To learn what food poisoning is, how food can become contaminated, and how to avoid food poisoning, read Nolo's article Food Poisoning and Foodborne Illness.)
Food poisoning lawsuits generally fall under the category of defective product liability claims, the idea being that you have been sold a defective product (food) that injured (poisoned) you. (To learn more about product liability claims in general, see Nolo's article Product Liability FAQ.) The most common legal theories in these cases include:
Strict product liability. Many states have adopted strict product liability laws, which relieve you of any burden of having to show that the manufacturer or supplier of a contaminated food product was not sufficiently careful in making or distributing that product (a big advantage to you). You just have to show that the food product you ate was contaminated and that the contamination was the cause of your illness.
Negligence. In addition to a claim based on strict products liability, or in cases or states in which strict liability is not an available legal basis for your claim, you may be able to argue that the defendants in your case acted negligently in manufacturing or supplying the contaminated food product that made you sick. In order to prove negligence, you must show that the defendants were not reasonably careful (called "failing to exercise reasonable care") in making or distributing the contaminated food product that made you sick.
Breach of warranties. Most states impose certain minimum standards on products (known as "implied warranties"), and the contamination of the food product involved in your case may constitute a violation (or "breach," in legalese) of those implied warranties. In addition, the contamination may also constitute a violation of any express guarantees supplied by the food processor (such as a "triple-washed" label on a pre-prepared salad pack).
Additional legal arguments may be available to you depending on the particular circumstances of your case. (To learn more, read Nolo's article Defective Product Claims: Theories of Liability.)
Proving your claim is often the greatest challenge in food poisoning cases. Generally speaking, you will have to prove two things in order to win your lawsuit:
The food you ate was contaminated. You will have to pinpoint the particular food product that made you sick. If there is a time delay -- which is quite common -- between eating the contaminated food and coming down with symptoms of food poisoning, it may be difficult to determine specifically what it was that made you sick, unless many others were also made ill by eating the same food product.
Proving a link between the food you ate and contamination is easiest in cases where a government health agency steps in and traces an outbreak of food poisoning to a particular source. Scientific testing to determine the particular type of disease-causing microbes that were present in the contaminated food can be critically important because it can provide solid evidence linking the contaminated product with your illness.
The contamination made you sick. You will also need to prove that your illness was caused by the contaminated food. The best way to do this is to have a stool sample scientifically tested for food poisoning. If you can show that your stool sample contained the same disease-causing microbes that were found in the contaminated food source, you will greatly strengthen your claim.
As a general principle in defective product cases, you want to include any and all parties involved in the chain of distribution (the path that the product takes from the manufacturer to distribution to customers) of the contaminated food. In food poisoning cases, you will need to trace the contamination to its source; anyone involved in the chain of distribution of a food product at or after the point of contamination may be liable.
The chain of distribution in a food poisoning case is typically made up of the food processing company (such as a slaughterhouse or farm), the retailer (such as a grocery store or restaurant), and any number of suppliers, wholesalers, and distributors in between. (To learn more, read Nolo's article Defective Product Liability Claims: Who to Sue?)
Every state sets certain time limits, called the "statute of limitations," on bringing personal injury claims. Be sure to find out the statute of limitation in the state where you are bringing your claim. (To learn more about these time limits, read Nolo's article Time Limits for Filing a Defective Product Liability Claim. For the time limit to bring injury lawsuits in your state, see Chart: Statutes of Limitations in All 50 States.)
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.
In some cases, a class action may have already have been filed in connection with the particular outbreak of food poisoning that made you sick (the class action lawsuit against ConAgra in connection with another Salmonella-contaminated peanut butter is one example), and you may have the option of joining that already-existing lawsuit. Joining an existing class action has several advantages:
You also have the option of not joining an existing class action and bringing your own lawsuit instead.
If you were a victim of an outbreak of food poisoning, consider consulting with a lawyer to find out if there is an already-existing class action concerning that particular outbreak, and if so, whether it is advisable for you to join that class action. (If there is an already-existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.
Depending on your case, you may wish to retain the services of a lawyer who specializes in personal injury (some personal injury lawyers even specialize in food poisoning cases).
For help on choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with food poisoning cases).
To find out how to make the best case for yourself and win your personal injury claim, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).