Can you sue for food poisoning? How to bring a lawsuit

The law allows you to file a food poisoning lawsuit against all the companies and people responsible for your illness. Typical damages include compensation for

• medical bills,
• lost work,
• pain and suffering, and
• punitive damages.

The following bubble graph shows just some of the potential liable parties in food poisoning lawsuits.

In this article, our California personal injury lawyers discuss the following:

• 1. Negligence
• 2. Products Liability
• 3. Expired Foods
• 4. How do I prove liability?
• 5. Foodborne Illnesses
• 6. Can a restaurant employee get me sick?
• 7. Damages
• 8. Examples of Food Poisoning Cases
• 9. Reporting Food Poisoning
• 10. Waivers
• 11. Warnings
• Additional Resources

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Negligence

You can sue a restaurant for negligence for causing you food poisoning. In order to recover damages, you usually need to prove three things:

1. The restaurant owed you a duty of care (such as following food safety laws);
2. The restaurant breached their duty (such as by failing to follow food safety laws); and
3. The restaurant’s breach was a substantial factor in causing your food poisoning (“causation”).¹

Note that restaurant owners are vicariously liable for the negligence of their employees.²

Example: Steven orders a hamburger at a diner. The cook, who forgot to wash his hands, passes bacteria onto the burger when putting it on a plate. Steven eats the hamburger and contracts hepatitis. Steven can sue the diner because the diner is vicariously liable for the cook’s negligence.

Food Safety Tips

According to the World Health Organization (WHO), the five keys to safer food include:

1. Keep hands and food preparation areas clean;
2. Separate raw and cooked foods;
3. Cook food thoroughly;
4. Keep food at safe temperatures; and
5. Use safe water and raw materials.

You can get food poisoning in a number of different ways, but it generally involves improper food handling by the company or employees. California law requires all food handlers to have a California Food Handler Card.³

Food handlers and restaurant managers know or should know how to avoid food contamination. When you get sick from the food, it is often because someone is not following food safety rules.

2. Products Liability

When a food service company provides food with bacteria or other pathogens, you may not know whether the restaurant was responsible for food poisoning or whether it was the supplier. Under California law, you may be able to file a lawsuit based on product liability laws.

Under product liability laws, anyone who manufactures or sells a defective product is strictly liable for any injuries caused, even if that person or company was not negligent.⁴

In food poisoning cases, you will generally have to prove four things:

1. The defendant distributed or sold a contaminated or defective product;
2. The product was contaminated or defective when it left the defendant’s control;
3. You used or consumed the product in a foreseeable manner; and
4. You suffered harm as a result of the defect.⁵

Food Service Companies

Common defendants in products liability cases are food service companies. These companies provide ingredients and food to restaurants. Examples are:

• national food service providers like Aramark and Sysco, as well as
• local providers of meat, produce, and other products.

These companies could be providing contaminated fresh produce, eggs, meats, or other food products to local restaurants.

Food service companies also include those that sell packaged foods like salads and sandwiches. This could include grab-and-go type foods sold at

• grocery stores,
• gas stations, or
• the airport.

These meals are often prepared in large facilities and distributed across the area. Just like with other restaurants, using contaminated food products or employees mishandling food could result in you getting sick.

3. Expired Foods

Selling expired groceries may not be enough to file a personal injury lawsuit against the grocery store. However, if the grocery store sold expired food that caused you to get sick, the store may be liable for any injuries.

Under product liability laws and/or negligence laws, the grocery store may be responsible for selling or providing contaminated food that resulted in harm to the customer. The manufacturer or supplier of the product may also be liable.

If you purchased expired food from the grocery store you may be able to return your purchase to the store for a refund. If the store does not offer a refund, you may be able to file a lawsuit in small claims court.

Are Food Expiration Dates Regulated?

Food expiration dates are generally not regulated. One of the only expiration dates that federal law regulates is for infant formula.⁶

For all other foods, “expiration” or “sell by” may just be provided by the manufacturer without any basis in science. Many foods are safe to eat even after the “best by” date.

4. How do I prove liability?

If you get sick from a virus or bacteria, it can be difficult to know where the contamination originated. Different bacteria can affect people differently, with varying “incubation periods.” Some infections can make you feel ill within a matter of hours while some may not show up for days.

For example, signs and symptoms of an E. coli infection can take from one day to over a week to develop. This means that if you get sick from food poisoning on a Sunday, the source of the contamination could theoretically be from anything you ate during the week before.

Moreover, listeria symptoms generally start from 1 to 4 weeks after eating contaminated food but could take up to 70 days.⁷

Evidence of the Source of Food Contamination

You may be able to prove that a restaurant or food service company made you sick

• by using direct evidence of contamination or
• by showing a number of similar illnesses from the same source.

If you get sick from eating or drinking something, you may need to visit your doctor or other healthcare for testing. Tests can often determine the type of bacteria, virus, or pathogen that may be responsible for your illness. These results can be tied directly to the

• restaurant,
• source of food, or
• an employee at a restaurant.

In some cases, you may have leftovers from the meal that could also be tested for bacteria or contamination. Even if you never get tested for the type of bacteria responsible for your illness, you may have a claim against a restaurant where there has been a larger outbreak of illness.

Example: Jane eats at a sushi restaurant in Torrance. The next day, Jane suffers vomiting and diarrhea and has to stay home from work. Jane watches the local TV news and sees a story about a dozen other people got sick after eating at the same sushi restaurant. It may be likely that the restaurant was responsible for Jane’s sushi poisoning illness.

5. Foodborne Illnesses

There are many types of food-related bacteria and viruses that can make you sick. According to the Centers for Disease Control (CDC), researchers have identified more than 250 foodborne diseases.⁸ Common ones include:

• Botulism (Clostridium botulinum)
• Campylobacter
• Clostridium perfringens
• Cryptosporidium
• E. coli (Escherichia coli)
• Giardia
• Hepatitis A
• Listeria
• Norovirus (Norwalk virus, calicivirus, viral gastroenteritis)
• Salmonellosis (Salmonella)
• Scombroid Fish Poisoning
• Shiga toxin-producing E. coli
• Shigella
• Staphylococcus aureus (Staph)
• Toxoplasmosis (Toxoplasma gondii)
• Vibrio infections (Vibrio parahaemolyticus)
• Yersinia

Commonly Contaminated Foods

Any type of food can be contaminated with bacteria or viruses, as well as non-food items like plates and silverware. The foods most associated with foodborne illnesses include:

• Raw animal meat and poultry
• Raw eggs
• Unpasteurized milk
• Raw shellfish
• Fruits and vegetables contaminated with animal or human waste
• Raw sprouts
• Unpasteurized fruit juices
• Food touched by a person with an illness
• Peanut butter

Vulnerable Victims

Foodborne illnesses are especially dangerous to the highly susceptible population that includes those:

• With an impaired immune system;
• Preschool-age children;
• Elderly;
• Sick; or
• Confined to facilities that provide custodial care.

Symptoms

Common symptoms of food poisoning from eating tainted or contaminated products include:

• Diarrhea
• Abdominal cramps
• Nausea
• Fever
• Fatigue
• Vomiting
• Loss of appetite
• Weight loss

Additional symptoms, from illnesses such as botulism or hepatitis, may include:

• Blurred vision
• Difficulty swallowing
• Slurred speech
• Dry mouth
• Muscle weakness
• Muscle aches
• Confusion

6. Can a restaurant employee get me sick?

When a cook, server, or other restaurant worker is sick, they can transfer the illness to you. According to the Food and Drug Administration (FDA), an infected food employee can shed hundreds of thousands of pathogens in their feces that can be transmitted to food, even with handwashing.⁹

In some cases, managers know the employee is sick but still allow — or even require — them to work handling food.

According to a study by the Environmental Health Specialists Network (EHS-Net), 12% of food service workers reported working when they were sick with vomiting or diarrhea. These service workers are more likely to work when they are sick when the restaurant:

• Is busy;
• Does not have a policy that requires workers to tell a manager when they are sick;
• Does not have on-call or replacement workers available; or
• Has a manager with less than 4 years experience.

7. Damages

By suing for food poisoning, you may be able to recover the following damages:

Economic Damages

Economic damages, or pecuniary damages, generally have a clear dollar value attached. This includes costs you lost “out-of-pocket” related to getting sick. For a short-term illness, this generally includes:

• Medical bills,
• Prescription medication, and
• Lost wages.

However, if someone is permanently injured or disabled as a result of getting sick from tainted meat or produce, economic damages could include lost earning capacity.

Non-Economic Damages

Non-economic damages can be more difficult to calculate. These damages may not have a clear dollar value, and include subjective losses such as:

• Pain and suffering,
• Emotional distress,
• Physical impairment (such as loss of the use of a limb),
• Disfigurement, and
• Loss of life enjoyment.

Punitive Damages

Punitive damages – unlike compensatory damages – are awarded to you as a way to punish the defendant. These damages are used

• to penalize the defendant for extremely reckless behavior or intentionally harming you, and
• to prevent similar types of harm from happening in the future.

Under California Civil Code § 3294, punitive damages are allowed where you can show by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.¹⁰

8. Examples of Food Poisoning Cases

People fall ill from eating contaminated products all the time. However, it generally takes dozens of people to get seriously ill before the public hears about food poisoning cases. There have been a number of food poisoning cases over the past decade including:

• 2015 – Chipotle Mexican Grill – From October to November, at least 45 people contracted E.Coli across a number of states, including California. At least 16 victims were hospitalized.
• 2015 – Cucumbers – Over 300 people were sickened by Salmonella-contaminated cucumbers, resulting in at least 2 deaths.
• 2014 – Cheese – At least 7 children were infected with listeria linked to cheese, including one infant death in California.
• 2013 – Chicken Salad – At least 26 people in 3 states were infected with E.coli possibly caused by eating prepared chicken salad.
• 2013 – Foster Farms Chickens – Over 600 people may have been infected with Salmonella related to chicken products.
• 2012 – Peanut Butter – More than 40 people in 20 states were sickened by Salmonella-contaminated peanut butter products.
• 2011 – Ground Turkey – A least 76 people in multiple states became ill related to fresh and frozen ground turkey, with one person in California dying from the infection.
• 2009 – Peanut Butter – More than 700 people got sick and 9 died from Salmonella-tainted peanut butter.

Chipotle

The popular restaurant chain Chipotle has had a few run-ins with food poisoning outbreaks. Chipotle Mexican Grill has had a number of food safety contamination events since about 2008. Outbreaks include:

• Hepatitis
• Norovirus
• Campylobacter jejuni
• E.coli
• Salmonella

2015 Outbreak

In 2015, the restaurant chain had large outbreaks involving Salmonella, E. coli, and Norovirus at multiple locations across the country, including California. This resulted in the closing a number of restaurants. The sources of these illnesses may have included:

• Sick employees working with food
• Lack of handwashing
• Infected employees
• Contaminated produce
• Temperature control

Simi Valley Outbreak

Health inspectors in Ventura County found numerous health code violations at a Simi Valley store. The restaurant was allowed to remain open and continued to operate. A New York Times article reported the number of victims was 207, higher than previously reported.

A federal class-action lawsuit was filed against Chipotle for allegedly allowing a sick kitchen manager to work in the restaurant before sending the sick worker home. The restaurant then cleaned the restaurant before notifying the Ventura County Environmental Health Division, which hurt the investigation.

Other Outbreaks

That same year, there were also outbreaks of Salmonella in Minnesota and E. Coli in

• Washington,
• Oregon,
• Massachusetts,
• Kansas, and
• Oklahoma.

Chipotle eventually closed all their locations for a few hours for a food safety meeting, hired a new head of food safety, and implemented a policy that employees have to wash their hands every half hour. However, the next year, more than 130 people reported possible norovirus-like symptoms related to a Chipotle in Virginia.

Cheesecake Factory

Another large food chain that has had issues with claims of food poisoning includes The Cheesecake Factory. The restaurant chain, known for large portions and its signature cheesecakes, operates more than 100 restaurants, including more than 35 in California.

In 2013, a man ordered a mahi-mahi dish at The Cheesecake Factory. The man reportedly felt like something was wrong within minutes of eating the fish. He began to feel dizzy, passed out, and fell onto the floor. The man was rushed to the emergency room and diagnosed with scombroid poisoning.¹¹

Scombroid poisoning is a type of foodborne bacteria that occurs when fish is

• not properly refrigerated and
• starts to rot.

Cooking food at a high temperature is not enough to prevent the contamination. The victim filed a lawsuit against The Cheesecake Factory, which the food chain settled before going to trial.

9. Reporting Food Poisoning

You may want to report food poisoning to your local health department. This can help them identify potential outbreaks.

If possible, you should gather evidence surrounding the food poisoning. This may include:

• Keeping leftovers for testing
• Keeping receipts from the meal
• Making a list of where you ate, what you had, and when
• Keep a diary of your symptoms
• Identify other people who were eating at the restaurant at the time
• Any other evidence related to the incident

10. Waivers

When people get sick after eating at a restaurant, they often contact the restaurant to complain or report the sickness. The restaurant may apologize and offer

• a refund,
• a gift certificate, or
• a free meal.

However, you should be careful if the business asks you to sign a waiver as a condition of accepting the payment or credit. The waiver may strip you of your right to sue. Before you sign away your rights, consult a lawyer.

11. Warnings

Many menus have an advisory statement warning about the risks of consuming raw or undercooked foods. This advisory may look something like the following:

• “Consuming raw or undercooked meats, poultry, seafood, shellfish or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions.”

Just because a menu has a warning about consuming raw or undercooked foods does not make them immune to a lawsuit. Like any other restaurant, if you can show employee negligence in preparing, handling, or serving the food that caused you to get sick, you may have a claim for damages.

California’s Consumer Advisory

The California Retail Food Code requires a Consumer Advisory for certain foods that are sold raw, undercooked, or not processed to eliminate pathogens. This includes:

• Beef
• Eggs
• Fish
• Lamb
• Veal
• Pork
• Poultry
• Shellfish
• Milk
• Salad dressing
• Sauce¹²

Raw or undercooked foods can be served if either of the following requirements are met:

1. You specifically order that the food be individually prepared less than thoroughly cooked; or
2. The food facility notifies you, orally or in writing, at the time of ordering, that the food is raw or less than thoroughly cooked.¹³

Common Foods with Raw Food Warnings

These types of raw food warnings are most common in restaurants serving:

• Sushi
• Steaks
• Hamburgers (can be cooked to order)
• Oysters on the half shell
• House-made Caesar salad dressing (with raw egg)
• Desserts made with raw eggs, like Tiramisu.

Additional Resources

For more information about food poisoning, symptoms, and treatments, refer to the following:

• Mayo Clinic – A renowned nonprofit medical practice and research group known for its innovative and high-quality patient care.
• Centers for Disease Control and Prevention (CDC) – The United States’ leading national public health institute, focused on disease control and prevention.
• Healthline – A popular consumer health information website providing evidence-based health content and wellness resources.
• Cleveland Clinic – A multispecialty academic medical center recognized for clinical excellence and pioneering medical breakthroughs.
• National Institutes of Health – The primary agency of the United States government responsible for biomedical and public health research.

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