Restaurant Liability for Injuries

According to the U.S. census, today there are more than 500,000 restaurants in the United States. Each day, more than 130 million Americans eat at restaurants. Restaurants are where we go to enjoy good food and have others serve us.

Unfortunately, not all restaurant experiences are pleasurable. Accidents sometimes occur, and when they do, customers are injured. To protect themselves from lawsuits, most restaurants carry liability insurance.

Common causes of restaurant injuries include:

Food Poisoning
According to the Centers for Disease Control and Prevention (CDC), food poisoning is the most frequently reported restaurant injury. Food poisoning is a catchall phrase for various types of bacterial infections. Common restaurant food poisoning infections include:

  • Salmonella
  • Staphylococcus aureus
  • E. coli enteritis
  • Shigella
  • Campylobacter enteritis
  • Cholera
  • Fish poisoning

According to the CDC, there are more than 70 million cases of one form or another of food poisoning each year. Many other cases go unreported because infected customers aren’t aware food poisoning caused their illnesses, and failed to seek medical attention. Food poisoning can cause uncontrollable vomiting, diarrhea, and stomach cramps. If left untreated, food poisoning can lead to brain damage and even death.

The bacteria that cause food poisoning can enter your body by several means. The most common are through meat and poultry not kept at a proper temperature. Other food products like mayonnaise that isn’t refrigerated properly also cause illness. Food can also come in contact with other bacteria in water tainted by human waste, or unclean cook and waiters’ hands.

Slip and Falls
You’re a lot more likely to slip and fallin a fast food restaurant than in a more formal restaurant setting. Fast food restaurants serve as many customers as possible in the shortest amount of time. As a result, spilled drinks and food on the floor are common.

Scalding
When the waiter says, “Be careful, the plate is hot!” he usually means it. Restaurant food is usually served at 120 to 130 degrees and sometimes higher. Hot food or coffee at 140 degrees can give third-degree burns to a customer’s skin in seconds. Even lower temperature burns are quite painful.

Broken Teeth
Breaking a tooth while eating at a restaurant is not only painful, but can also result in embarrassment and minor disfigurement. Depending upon which tooth it is, and the size of the break, a customer may have to spend thousands of dollars for tooth replacement, porcelain veneers, or other remedial dentistry. Customers can break their teeth on shards of glass or plastic in their salads, and even on hard almonds in ice cream.

Choking
According to the National Restaurant Council, more than 3,000 people die each year from choking while dining at restaurants. Choking can occur for a variety of reasons. While speaking or laughing, food can bypass the throat and lodge in a customer’s windpipe. Customers can also choke on bones left in supposedly deboned fish, broken and granulated bones left in meat, and foreign objects inadvertently left in food.

Often, it’s not choking that results in the injury, but the restaurant’s failure to administer CPR or call for emergency medical help promptly. When choking customers don’t receive care immediately and effectively, they can suffer suffocation and asphyxiation leading to brain damage and even death.

Puncture Wounds
Puncture wounds occur more frequently in the summer months. That’s when customers are more prone to wear sandals or running shoes with thin soles and even walk barefoot into restaurants. Exposed screws, splintered wood, and broken glass are frequent culprits. Puncture wounds can lead to tetanus, bacterial infections, and scarring.

Restaurant liability and the law

Most people don’t give a lot of thought to injuries while in a restaurant or while eating restaurant food. Keep in mind a restaurant injury isn’t restricted to incidents on the premises. Food bought at a restaurant and consumed elsewhere can also cause injuries.

The law concerning restaurant liability is pretty clear. Restaurants are subject to state, county, and municipal health regulations. When restaurants violate safety regulations, the authorities can fine them or shut them down temporarily or permanently. The problem is that the fines the restaurants pay don’t go to injured customers. They go directly into the government’s coffers.

Fortunately, the courts take a different view of restaurant liability and customer injuries. If something in, or offered by a restaurant injures you, the courts give you the right to pursue compensation directly from the restaurant or its insurance company.

Here is how it works. The courts hold all restaurants serving the public to a very high legal duty of care (obligation) not to unduly harm their customers. This means restaurant owners must do everything reasonably possible to make sure their customers don’t get injured.

A restaurant’s duty of care includes not only following government laws and regulations, but also considering events that might foreseeably harm customers. This doesn’t mean every event, just those that similar restaurant owners and managers can reasonably foresee.

For example, if a customer cuts their arm on an exposed nail in the restaurant, the courts would probably consider the exposed nail a foreseeable event. All restaurant owners know, or should know, an exposed nail can cause a customer injury.

In the alternative, if one customer spills a drink on the floor and seconds later another customer slips and falls, there’s a good chance the courts would consider that an unforeseeable event.

The reasoning is a little tricky. In the case of the customer slipping on a spilled drink seconds after the spill, the restaurant didn’t have a reasonable amount of time to clean it up. It’s unreasonable, and arguably impossible, for a restaurant manager to have his employees following around each customer with a mop so the moment a customer spills a drink they could mop it up.

Yet, if a drink spills on the floor and it remains there for an hour, and another customer slips and falls, there’s a good chance that’s a foreseeable event. In this case, it’s reasonable for a restaurant manager to inspect the restaurant floor at calculated intervals to keep the floors clear and dry.

The injury is even more foreseeable if a customer reported the spilled drink to the manager. If he failed to quickly send an employee to mop up the spill (even if it was before the regular interval for inspection), the restaurant becomes liable.

When a restaurant fails to do everything reasonably possible to protect its customers, and as a result a customer gets injured, the courts consider the restaurant to have breached (violated) its duty of care (obligation) to the customer. The act or omission which results in the customer’s injury is referred to as the restaurant’s negligence.

When a restaurant’s negligence results in your injury, you’re entitled to compensation from the restaurant or its insurance company for your damages. Damages include medical and therapy bills, and out-of-pocket expenses for medicines, crutches, and even costs like hospital lot parking fees. You’re also entitled to reimbursement for lost wages and an amount for pain and suffering.

Evidence to prove your claim

Knowing the law about restaurant liability and negligence is one thing. Proving your claim of negligence is another. To prove negligence takes evidence. You must have sufficient evidence to prove not only that the restaurant was negligent, but also that the negligence was the direct and proximate (legally acceptable) cause of your injury.

In other words, you may have suffered your injury at a restaurant or while eating a restaurant’s food, but if you can’t positively link the restaurant to your injury, your personal injury claim will fail.

In some states, if you were partly responsible for your injury, the restaurant is only partially liable (comparative negligence). In those cases, the percentage of your fault reduces the final settlement amount. In a few states, if you were even slightly at fault, the restaurant owes you nothing (contributory negligence). In that case, your entire personal injury claim would fail.

Your evidence must show that the event causing your injury:

  1. Was foreseeable by the restaurant owner
  2. Constituted negligence
  3. Directly caused your injury
  4. Resulted in real damages

Here’s where to begin:

Call for help.
If you get hurt, don’t feel embarrassed, and whatever you do, don’t leave. If you can’t call the manager over, ask a friend or another customer to do it. It’s important for the manager to know immediately of your injury and its cause.

If your injury is serious, tell the manager to call 911. If your injury doesn’t require immediate medical attention, the manager should administer first aid. Restaurants must, by state and local regulations, keep a thoroughly packed first aid kit on hand at all times.

Be sure to tell the manager exactly what happened. For insurance purposes, it’s highly likely he will fill out an incident report. If you leave and come back later without reporting your injury, and no one completes an incident report, the employees may eliminate or cover up the cause of your injury.

For example, if a broken shard of glass left on the floor punctures your foot, and you hobble away, only later to decide to go back and report your injury, it’s likely the glass is already gone, or another customer may have unwittingly kicked it out of harm’s way. At that point, trying to convince the manager a “phantom” shard of glass caused your bloody foot is all but impossible.

Witnesses
Witnesses, especially independent eyewitnesses, can make or break your restaurant liability claim. Ask an eyewitness to write down what she saw and ask her to sign and date the statement. It doesn’t need notarizing.

For example, if you arrive at work minutes after picking up a breakfast burrito at the local fast food joint, and shortly after eating the burrito you began to vomit violently, ask a coworker to call for help. Ask him to write down the time he saw you eat the burrito and approximately how many minutes later you became ill.

Photographs, video and audio
Use your cell phone to photograph or video the cause of your injury and the injury itself. For example, if you bit into that Cobb salad and broke your tooth on a small rock, make sure you photograph and video the salad, the rock, and your broken tooth. Also, ensure the time and date stamp are on.

Filing your claim with the insurance company

When the dust settles and you can finally speak with the insurance adjuster, tell the adjuster how you were injured and why. Tell her you have witness statements, photographs, and video evidence. The adjuster will tell you to send her copies of all your evidence, including your damages to date.

Settlement negotiations won’t begin until after you fully recover from your injury and your treatment has run its course.

Hiring an attorney

If you have a minor injury like a sprain, minor cuts, or abrasions, you can probably handle the insurance claim on your own. If though, your injury is serious, like broken bones or teeth, second- or third-degree burns, food poisoning, or other like injuries, you need an attorney. There’s too much at stake for you to try and handle a serious case alone.

See an example of a restaurant injury demand letter here.

Case Study:

Serious Burn Injuries at Private Party
In this premises liability lawsuit the plaintiff seeks damages after he was seriously burned by a heating element while attending a private party at a restaurant.

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