Visitor Question

Restaurant served dairy after being told of child’s allergy…

Submitted By: Tina (Damascus, OR)

We went out to eat and asked if the restaurant had a Dairy Free Frozen Drink. The employee said yes, “the Breeze”. We asked if she was sure there was no dairy because my Daughter is Allergic to milk. Again the employee said yes. However, after consuming the drink my daughter became sick to her stomach.

She became overheated and then got chills with Hives covering her entire body. She had to take two Benadryl and purge her stomach by throwing up. She was ill and weak for approximately 24 hours after ingesting the drink.

The owner of the restaurant admitted the employee made a mistake and assured me she was “crying” over the situation, as if this should be enough.

He also offered to give my daughter a free treat on her birthday. Again, as if this should make up for it.

Does my daughter deserve any judgement for pain and suffering? How would I proceed?

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Tina,

You daughter’s suffering is very unfortunate. The restaurant’s employee’s suffering seems to be unfortunate as well.

The most important thing is that your daughter didn’t suffer any permanent injuries. Her reaction to the dairy product, albeit very unfortunate, doesn’t present enough substance for any type of substantial monetary settlement.

There have been similar cases in California and Oregon. In those cases the majority of court decisions found in favor of the Plaintiffs, but in so doing only awarded reimbursement for the child’s medical bills, or “Hard Costs” as they are called.

In a minority of the cases the courts also awarded some amount of lost wages and out of pocket expenses to the parents for the work they missed and the money they spent on medicines and the like.

None of the cases we found awarded additional amounts for pain and suffering, mental anguish, or emotional distress to either the child or the parents.

The reasoning behind the juries’ decisions was their determination that the parent was contributorily negligent for bringing their lactose intolerant child to a restaurant whose menu consisted primarily of dairy products.

In those cases the juries found fault with the parents for trusting the statement of a minimum wage worker, with minimum training, in a restaurant whose menu consisted of over 80% dairy products – restaurants like Dairy Freeze, Carvel and some others.

The juries reasoned if the parent was responsible enough to take their child to a restaurant whose menu consisted primarily of non-dairy foods, with only a few desserts listed as dairy or non-dairy, and an employee made a mistake serving what they specifically said was a non-dairy dessert, that that employee and restaurant should be held to a much higher standard, and the negligence of the parent would be minimal, if at all.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: August 23, 2011

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