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Food Poisoning or Contamination at Restaurants

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Dirty restaurant kitchen where food poisoning can occurA lot of injuries happen at restaurants. One of the most common is food poisoning. According to the Centers for Disease Control and Prevention (CDC), about 48 million of us get sick from contaminated foods every year. However, it can be quite difficult to prove that a particular dinner at a particular restaurant was at fault for making you sick. You have to consider whether something else–an earlier meal, a stomach virus, a pill that caused a bad reaction–could have caused your illness. You would have to get yourself tested to rule out some of these other factors. It is important to go straight to a doctor because failure to do so could undermine your legal claim.

Secondly, even if you have independent proof that the food was contaminated or poisoned, you would have to prove that the contamination or poisoning happened before you were served the food. If you take your bag of leftovers to a lab to be tested, the restaurant will quite likely argue that you failed to refrigerate the food or you contaminated it in some way before taking it to the lab. If you were not the only one injured by the food, such as in the cases of mass outbreaks of foodborne illnesses, it is much easier to track the source of the problem and much easier to prove.

Thirdly, even if you can prove it, you have to assess whether it is worth the time and money to pursue a legal claim. If the illness resulted in you having a bad evening of multiple trips to the bathroom, you might be better off talking to restaurant management and working out something with them directly. Restaurants can be quite generous in these minor situations, whereas judges and juries can be less so. On the other hand, noteworthy and dangerous microbes like E.coli and salmonella or actual physical injuries such as an abrasion of your esophagus from choking on a chicken bone can result in greater court awards, so if it turns out that such a microbe was in your food or you suffered such an injury, you should talk to an attorney. Also, if you are very young or old, this is more dangerous and might result in a greater court award.

If you move forward with a lawsuit against the restaurant, be ready to explore the following important factors:

  • The restaurant’s history of handling food, including the storage, preparation, and refrigeration of food;
  • Your medical history, especially any gastrointestinal issues or allergies;
  • Your medical records from when you were treated for the food borne illness;
  • What you ate or ingested in the day before the symptoms began, particularly anything alcoholic, illegal, or exotic;
  • Whether any other restaurant patrons became sick;
  • The incubation period, which is the time between your consuming the food and the onset of your symptoms;
  • Whether you noticed anything weird about the food before you ate it, such as smell, color, or texture because if you did and you ate it anyway, you may be guilty of negligence;
  • How long after purchase you ate the food in case it went bad while you waited;
  • Whether other people who had access to it, in case one of them was the cause of the contamination;
  • What injuries you suffered (This should be something more significant than a few hours of diarrhea);
  • Whether either you or the restaurant has dealt with this kind of legal claim before;

It is not enough to be merely frightened or grossed-out by contaminated food. In a Georgia case, a woman sued McDonald’s because she discovered two drops of blood on the inside wall of her french fry container, but not on any french fries. She claimed that the sight of the blood made her immediately nauseous and she vomited. Also, she claimed that she suffered from panic attacks and the inability to sleep due to fear of having contracted HIV or Hepatitis C. The court said proof of actual exposure to HIV or hepatitis was necessary to receive a court award for emotional distress.

Suing restaurants for extremely hot cups of coffee could go either way. An Ohio court found that Starbucks had no affirmative duty to securely place the lid on a cup of coffee. On the other hand, an Illinois court found that Starbucks did have a duty to the general public to provide sound cups, to properly place lids on the cups, and to serve the coffee at a decent temperature.

Finally, if one the restaurant’s employees purposely poisons you, you may not win a suit against the restaurant owner because courts could consider the purposeful criminal act to be a break in the chain of causation. In other words, that is the independent act of the employee, not the restaurant’s act. This was a real case in Ohio where a gas station cashier filled the plaintiff’s cup with water, germicide and deodorant cleaner. The suit against the gas station failed.

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