Anyone who has a child in school has probably experienced a situation in which they have been advised not to have foods containing peanuts brought to school as part of the school lunch. Peanut allergies can result in serious complications including anaphylactic shock, a condition in which the body suffers an extreme reaction which can lead to profound swelling, restricted airway and choking, racing heartbeat, etc. This particular question strikes very close to home as my wife suffers from a very severe nut allergy that requires her to take Benadryl and an epinephrine pen (EPI Pen) with her whenever we go out. Just one walnut could kill her.
In Livingston v. Marie Callender’s, Inc., a patron suffered an allergic reaction to a soup which contained MSG. The court ruled that “a defendant may be liable to a plaintiff who suffered an allergic reaction to product under strict liability failure to warn theory when: the defendants product contained “an ingredient to which a substantial number of the population are allergic”; the ingredient ” is one whose danger is not generally known, or if known is one which the consumer would reasonably not to expect to find in the product”; and where the defendant knew “or by the application of reasonable, developed human skill and foresight should have known, of the presence of the ingredient in the danger.” This applies to the issue of liability (fault) and it is still incumbent upon the person claiming they were harmed to prove that their particular injury was legally caused by the presence of the allergen.
In addition to a failure to warn case, liability for negligence lies if the food establishment did not exercise reasonable care in preparing and serving the food. If the presence of an injury-producing natural substance is due to the defendant’s failure to exercise due care, a plaintiff may bring a negligence cause of action. (Mexicali Rose v. Superior Court (Clark)). In such situations the court has, in some instances, allowed an inference to be drawn that there was cross-contamination. For example, in one case a plaintiff got sick after eating raw tuna at a restaurant by a type of bacteria that did not usually grow on tuna. The plaintiff was able to prove her case by demonstrating that it was more likely than not that she was injured as a result cross-contamination stemming from the restaurant’s violations of food safety practices including a lack of sufficient sterilization in the dishwasher, constant use of an unsterilized wipe-down rag and/or preparation of tuna and chicken on the same surface. The same has been held true when an inspection by the health department has shown unsanitary practices.
In cases of mass illness and contamination such as E. coli outbreaks in meatpacking facilities, the proof of causation is much simpler because the illness can be traced to the same product, batch and manufacturer. In these cases, given the heavy regulation of food sterilization, the inference of causation is much stronger.
If you become ill because of the fault of another in food preparation you do have legal remedies for your economic losses as well as your pain and suffering and discomfort. Keep the food product if any of it remains for testing and call the department of health right away to prevent others from getting sick. If you have a food allergy, always ask if the ingredient you’re allergic to is in any menu item. While it should already be noted next to the dish, it’s better to be safe than sorry and a good meal is better than a good lawsuit any day.
