Outbreaks of food poisoning and foodborne illness seem to make headlines fairly regularly. Perhaps you've even been sickened by a foodborne toxin or bacteria such as E. coli, Salmonella, Hepatitis A, Norovirus, Campylobacter, Vibrio, or Listeria. If so, you might be wondering whether you have a viable personal injury case against the restaurant or some other party.
The answer depends on the specifics of your illness, and whether it can actually be traced back to a particular dining experience. In this article, we'll cover what you need to know about making a food poisoning claim, including:
Food poisoning lawsuits ordinarily fall under the category of product liability claims, the idea being that you have been sold a defective product (food) that injured (sickened) you. Food can be considered "defective" in a legal sense for a variety of reasons:
The most common legal theories in defective product cases include:
Strict liability relieves the injured person of any burden to show that the manufacturer or supplier of a contaminated food product was not sufficiently careful in making or distributing that product. That's a big advantage, since it means you simply have to show that the food product you ate was contaminated and that the contamination was the cause of your illness.
You might 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 would need to show that the defendants were not reasonably careful (that is, that they "failed to exercise reasonable care") in making or distributing the contaminated food product that made you sick. If, for example, the restaurant knew that a particular type of lettuce had been recalled owing to bacterial contamination, but served it anyway, you might have a claim for negligence.
Most states impose minimum standards on products (known as "implied warranties"). So, the contamination of a food product could constitute a violation (or "breach," in legalese) of those implied warranties. In addition, the contamination might constitute a violation of any express guarantees supplied by the food processor (such as a "triple-washed" label on a pre-prepared salad pack).
Six-figure payments or settlements are extremely rare in food poisoning cases. The law awards "damages" mostly to compensate the person for actual harm experienced (such as lost wages and medical expenses and a need for ongoing treatment), as well as more subjective losses like "pain and suffering."
One of the largest food poisoning settlements was $1 million given to a California man who contracted food poisoning from eating contaminated raw oysters. But the outlier nature of that award becomes clear when one reads that the plaintiff not only got the classic symptoms of nausea, vomiting, and diarrhea, but developed an infection on his legs that destroyed skin, muscle, and tendon, and required two months in a hospital. The plaintiff's resulting disfigurement led to depression and suicide attempts.
So, if harm involved many days of illness, hospitalization, disability, or death, a significant damages award becomes possible in a food poisoning case. But if your experience was limited to an uncomfortable several hours, numerous trips to the bathroom, but no need for medical attention, the restaurant is less likely to settle your claim; and a court would probably say there was no significant harm that money can offset. Learn more about damages in product liability cases.
Food poisoning cases can be pretty challenging to prove. Time delays between consumption of the allegedly tainted food and onset of the illness can make it difficult to pinpoint what made you sick. After all, food is not the only source of gastrointestinal distress.
On the other hand, if a government health agency has linked a particular food you ate to an outbreak of food poisoning, your claim could be easier, and might ultimately lead to a quick settlement rather than an actual court case.
But in general, and especially given the difficulties inherent in proving a food poisoning claim, you'll probably want to proceed only if you can show serious harm as a result of the food poisoning.
Every state sets time limits on filing an injury lawsuit, based on a law called a "statute of limitations." Learn more about time limits for filing a product liability claim and get details on the statute of limitations in your state.
If you're one of a large number of victims of an outbreak of food poisoning, you might be able to band together and file a class action lawsuit.
In fact, a class action may already have been filed in connection with the particular outbreak of food poisoning that made you sick, and you might have the option of joining in. This would have several advantages:
Consider doing some online research or consulting with a lawyer to find out whether there is an already-existing class action related to your situation, and if so, whether it's advisable for you to join it. If there is an 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.
If you've read this far and you think it's worth pursuing a foodborne illness case, it might make sense to discuss your situation with an experienced attorney. Get tips on finding the right personal injury lawyer, or use the Chat and Case Evaluation tools on this page.