You’ve had a wonderful meal at your favorite restaurant. The shrimp scampi was exquisite. Three hours later, you are wrapped around your toilet, struggling to survive the ordeal.
You are upset and would like to know your legal rights, but you think that food poisoning is too small a case for which to take legal action. Perhaps.
Food Poisoning Injury
The following information will help you decide whether pursuing your legal rights in a food poisoning case makes sense.
The federal government has identified more than 300 different types of food poisoning. The degree and extent of illness from these different types will depend on your age, health, and the type and amount of tainted food ingested.
Symptoms of Food Poisoning
Common symptoms include dizziness, diarrhea, nausea, intense vomiting, headaches, and severe abdominal pains.
According to federal estimates, there are over 70 million national cases of food poisoning every year. Almost a half-million food poisoning cases result in actual hospitalization, and nearly 6000 of these cases result in death every year.
Proving Food Poisoning Claims
Thousands of consumers each year fall victim to food poisoning and food-borne illnesses. These incidents can result in legal claims,
Food poisoning lawsuits are mainly based on the laws governing product liability and general negligence. Product liability consists of numerous component legal theories upon which liability may be imposed upon a defendant or group of defendants.
One such legal theory is strict liability. It is a favorite among plaintiff’s lawyers because it does not require proving conscious fault by a defendant.
Strict Liability In Food Poisoning Lawsuits
Most, if not all, states have adopted strict liability. The distinguishing feature of strict liability is that the party bringing the lawsuit, the plaintiff, does not have to prove conscious fault, negligence, or intentional wrongful conduct on behalf of the defendant, restaurant, or supplier to legally prevail.
Notwithstanding, the plaintiff can still establish liability against the defendant based on simple negligence.
That is, the defendant failed to take reasonable and necessary precautions to ensure the food sold was safe to consume and did not pose an unreasonable risk of injury to restaurant guests.
Advantages of Strict Liability
All Sellers In the Chain of Commerce Are Liable
In strict liability cases, all you need to establish is that the food you ingested was contaminated and that the contamination was the cause of your illness. If you bring a strict liability lawsuit, you can literally sue anyone involved in the chain of commerce – specifically the manufacturer, distributor, supplier, and the supermarket or restaurant that sold you the tainted food.
The Legal Theory of Negligence
In addition to a legal claim based on strict product liability, there are still some states where strict liability is not available as a legal basis for food poisoning.
In these states, you may still be able to argue that the defendant acted negligently in preparing, processing, and or supplying the tainted product that made you sick.
Proving Negligence
To prove negligence, you must be able to prove that the defendants were not reasonably careful (failing to exercise reasonable care) in either the processing, production, or distribution of the subject food product that made you sick. This would include negligence in the food inspection process as well.
Breach Of Warranty – Uniform Commercial Code
Proving Liability Under Commercial Code
The Uniform Commercial Code has been adopted by most states and imposes liability under a particular legal theory of commercial contract law known as the implied warranty of merchantability.
The legal theory is based on the premise that there is an implied contractual right that the food purchased by a merchant in exchange for payment is, at the very least, not tainted – even if this promise was not expressly negotiated between the merchants.
This is also understood as the warranty of merchantability, which can impose strict commercial liability on all parties in the chain of commerce relative to the transfer and sale of tainted food products.
Proving Your Food Poisoning Claim – State Law
Under state law, the victim of food poisoning will have to prove three facts to prevail in court. The first is that the subject food was, in fact, tainted; second, the tainted food made you sick; and third, you can prove that you purchased the food from the defendant.
Must Establish A Causal Connection
Establishing a causal connection between the tainted food and the defendant is facilitated in cases where the state has already initiated a health investigation into the defendant’s food preparation practices.
The lawyer you retain to help you prosecute the case will likely be able to arrange for the necessary scientific testing to determine the cause of the taint and the causal connection with the plaintiff’s illness.
Preserve The Evidence
One way of proving that your illness resulted from contaminated food is to have your stool tested by a forensic laboratory. You will want to know whether you have ingested harmful microbes consistent with the type of tainted food you ate. If testing shows a match, you likely will have a strong claim.
You will also want to retain the receipt for the food you purchased.
Statute of Limitations On Food Poisoning Cases
Under state law, we are discouraged from sleeping on our rights rather than taking immediate action to protect and assert our rights. If you have a legal claim, you should pursue it quickly or risk losing the right to bring it later.
Another critical point is that different legal theories have specific limitations for when one must legally file a claim to keep it viable.
For example, in most states, the statute of limitations to bring a food poisoning lawsuit based on negligence is usually two years.
Retaining A Personal Injury Attorney
Your lawyer will know the exact time you must file such a lawsuit.
Suppose the defendant is a public entity, such as a school district that served tainted food. In that case, you will likely also be required to comply with the state’s claim process, which usually has a very short fuse concerning filing and notice deadlines.
For example, in some states, the claim-filing deadline is just six months from the date the action is said to have accrued, which is the date of your food poisoning.
The Class Action
Join or Opt-Out
If you are one of many victims of an outbreak of food poisoning, you may be able to band together and file a class-action lawsuit. If not, you can opt out of the class action and pursue your legal remedies individually.
Reasons to opt-out and bring your own lawsuit
One reason for not joining or opting out of a class action is that the financial recovery in such situations is usually much less than what one would recover in an individual lawsuit.
Reasons to join a class action
Sometimes, food taint is so widely dispersed throughout a population that joining a class action may make more sense. This is especially true if your case is small.
You may want to avoid being involved in a complicated and drawn-out lawsuit involving many depositions and a significant outlay of litigation costs. In that case, a class action might be a better option for you to choose.
E-Coli Food Poisoning
Many of these large class action lawsuits involve public outbreaks of E-Coli. In 2008, the Centers for Disease Control and Prevention estimated that nearly 2000 Americans are hospitalized from this condition every year, and about 60 of them die as a result of an E-Coli food poisoning.
Having an E-Coli infection can also cause serious health problems, including kidney failure called hemolytic uremic syndrome (HUS).
E-Coli outbreaks are often linked to undercooked meats and unsanitary cooking and food preparation conditions. Common symptoms of E-Coli infection could include bloody diarrhea, abdominal cramps, and severe vomiting.
Personal Injury Attorneys
If you have specific questions or require additional information about your legal rights and obligations, consult a verified Personal Injury Lawyer as soon as possible.
