Restaurant Food Poisoning: Liability and Injury Compensation for Victims

Tainted restaurant foods sicken and kill thousands of Americans every year. Here’s what you need to know about compensation for food poisoning.

Each year, one in six people in the United States get sick from food poisoning. Thousands of food poisoning victims have to be hospitalized, and roughly 3,000 don’t survive. ¹

Restaurants are the most common location linked to outbreaks of food poisoning, including sit-down restaurants, take-out spots, cafeterias, and delicatessens. ²

Food poisoning symptoms might appear within an hour or days later, and can range from mild stomach upset, to nausea, vomiting, and even death.

If you or a loved one have suffered from restaurant foo d poisoning, you have a right seek compensation for your medical bills, and pain and suffering.

Causes of Restaurant Food Poisoning

Most restaurants are safe and clean places to enjoy a bite to eat, a refreshing beverage, or a romantic dinner. Despite strict food-handling laws and regulations, thousands of patrons are sickened by food poisoning.

Some of the most common causes of food poisoning in eateries are caused by:

  • Tainted ingredients from the supplier: The restaurant owner may not realize until someone gets sick that they are using hazardous ingredients in their menu offerings. Like the outbreak of Hepatitis A linked to tainted frozen strawberries used to make smoothies that sickened hundreds of people in several states.
  • Cross-contamination: Fresh, healthy food can be contaminated with harmful bacteria from improperly washed cutting boards, utensils, and more. Raw meats, poultry and seafood, and their juices must be kept apart from other foods.
  • Poorly regulated food temperature: Perishable foods must be maintained at a safe internal hot or cold temperature to prevent the growth of dangerous bacteria. Many illnesses are caused by foods kept outside of the safe zone in restaurant kitchens.
  • Poor employee hygiene: Proper handwashing is essential to safe food handling. When employees don’t wash their hands with soap after handling raw meats, poultry, touching their hair or face, or after using the bathroom, disease-causing organisms can spread to the food they serve.
  • Sick food handlers: Several types of serious illness may be spread by infected food handlers. Sometimes workers don’t know they are ill or don’t disclose a known illness to their employer. Often, food handlers continue working as cooks and servers, despite active symptoms of a disease, because they need the money or are afraid of losing their job.

Case Summary: The Infamous “Typhoid Mary”

Mary Mallon was a carrier of Salmonella typhi, also known as “Typhoid Fever” in the early 20th century, before the development of medications to treat the potentially fatal disease.

Refusing to believe she carried a dangerous disease, Mary worked throughout New York as a cook. During the year of 1907, about 3,000 New Yorkers were infected, most likely because of Mary.

Mary was detained, tested positive as a carrier for Salmonella typhi, and warned she could not safely work in food service.

Despite the warnings, she changed her name to take a job working in a hospital kitchen. Within three months she had contaminated 25 people, including doctors, nurses, and staff. Two of the victims died.

To prevent further spread of the deadly disease, Mary was taken into custody by the health department and remained in custody for the rest of her life.

Liability for Restaurant Food Poisoning

Several federal agencies govern food safety in the United States, from the Department of Agriculture to the Food and Drug Administration.

Each state has its own safety and health regulations governing restaurants and other commercial food establishments. State rules are enforced by the board of health agents who make unannounced visits to see if the restaurant is following the rules.

Health inspectors check for general cleanliness, refrigeration levels, cross-contamination, and more.

Find your location on this FDA table of Retail and Food Service Codes and Regulations by State.

Failure to follow health regulations can result in stiff penalties for the restaurant and even closure. The fines go into the respective city or state’s coffers, usually into a general fund, and not to victims of food poisoning.

Restaurants have a legal duty of care to do everything within reason to protect their patrons from undue harm.

When the restaurant fails in its legal duty, and a patron is injured, the restaurant becomes liable for the injuries and resulting damages.

To win a food poisoning case against a restaurant, you need to prove:

  1. The restaurant owed you a duty of care to serve safe food
  2. The restaurant breached their duty by serving you contaminated food
  3. The food was contaminated due to the restaurant’s negligence
  4. The contaminated food was the direct and proximate cause of your illness
  5. You have measurable damages

Collecting Evidence of Food Poisoning

Thousands of people are sickened by food poisoning every day, and thousands more are sickened by non-food related germs that cause the same symptoms of nausea, vomiting, diarrhea, and belly cramps.

Proving a restaurant is directly responsible for your illness can be almost impossible, especially if you are the only person known to be sickened.

Medical Testing for Food Poisoning

If you’ve been the victim of restaurant food poisoning, seek medical care immediately. Your doctor must diagnose you with food poisoning and identify the type of bacteria or virus that made you sick.

Tell your medical provider exactly when and where you dined, and what you ate that you believe was contaminated.

Foodborne illnesses are often caused by:

  • Campylobacter
  • E-coli
  • Listeria
  • Norovirus
  • Salmonella
  • Shigella
  • Vibrio

For symptoms of each disease visit the FDA Chart of Foodborne Disease-Causing Organisms.

Unless you are sick enough to be hospitalized or are a person at high risk for complications from a foodborne illness, your doctor may diagnose food poisoning just from your symptoms.

People most likely to suffer complications from food poisoning are:

  • Pregnant women
  • Young children
  • Older adults
  • People with immune systems weakened from medical conditions, such as diabetes, liver disease, kidney disease, organ transplants, or HIV/AIDS
  • People receiving chemotherapy or radiation treatments

Your doctor’s diagnosis can help your claim, but laboratory tests showing the type of germ that made you sick are much better support for a food poisoning claim or lawsuit.

If your medical provider orders testing for food poisoning, a sample (usually a stool sample) will be sent to your local laboratory for testing.

If the test is positive for certain kinds of organism, some of the testing materials might be sent to the public health laboratory for more extensive testing.

Federal Foodborne Illness Surveillance

The U.S. Centers for Disease Control oversees a national laboratory network with the technology to do special DNA testing of organisms to help identify outbreaks of disease.

Strains of bacteria tend to have the same DNA “fingerprint” when they spread, kind of like members of the same family will have some of the same DNA traits.

The DNA test results are loaded into the Pulsenet database. Comparing test results in the database helps the government to figure out when a lot of people are getting sick from the same germ, even when they are miles apart.

Groups of people who are sick from the same germ are called a “cluster.” By interviewing people in the same cluster, investigators can figure out if the people all got sick from food that came from the same place.

If you are part of a food poisoning “cluster” caused by a negligent restaurant chain, the information can help your attorney pursue compensation on your behalf.

Today, some states require doctors to report foodborne illnesses caused by certain organisms.

The movement to establish mandatory reporting and fully fund the Pulsenet foodborne illness surveillance project gained traction after the deadly 1993 E-coli outbreak that affected multiple states.

Case Summary: Deadly Restaurant Food Poisoning Outbreak

In 1993, health department officials began investigated a life-threatening outbreak of illness in Washington state. Many of the victims were children.

The source of the illness was traced back to E. coli O157: H7 bacteria that had contaminated hamburger patties sold at area Jack in the Box restaurants.

Before all was said and done, over 700 people in four states were sickened, and four children died.

The exact source of the contaminated meat was never confirmed.

However, Jack in the Box was shown to be negligent for deliberately failing to cook burgers to a safe internal temperature.

Even though the company had been warned about undercooking hamburgers, the company “decided that cooking them to the required 155 degrees made them too tough.”

Jack in the Box has paid out millions in damages to food poisoning victims and their families, including a $15.6 million settlement to Brianne Kinner, who nearly died and was permanently injured after eating a tainted burger.

Other Important Evidence to Collect

  • Food samples and packaging: Bacteria can be identified by testing food, food containers, food wrappings, utensils, and other objects which may have come in contact with contaminated food.
  • Witness testimony: Proving you were at the restaurant is important. Speak with potential witnesses who dined with you. Ask them to confirm in writing they were at the restaurant with you on the date you contracted food poisoning and if they were also sickened. Have them sign and date their statements.
  • Lost wages verification: If you had to miss work while recovering from your illness, have your employer provide a written statement of the dates and times you were absent from work, and the amount of income you lost as a result.
  • Medical records, bills, and expense receipts: You will need copies of all medical records and bills related the food poisoning. Also, save receipts for any out-of-pocket medical expenses.

When to Call an Attorney

The severity of your food poisoning will determine if you need a personal injury attorney.

Minor Injuries

If your symptoms were minor, including mild diarrhea, vomiting and nausea, and only lasted a day or two, you may not need an attorney.

Contact the restaurant and tell the owner and manager about your food poisoning. Present copies of your meal receipt, medical bills, and out-of-pocket expenses. Also bring your other evidence, such as witness statements and proof of lost wages. Do not turn over your medical records or they will become public.

A fair demand for settlement would be the total of your medical bills, related expenses, and lost wages, with one or two times that amount added on for pain and suffering.

Be prepared to put your demand in writing.

We’ve made it easy with this sample Restaurant Injury Demand Letter.

If you recovered from a bout of food poisoning with little or no medical bills, it probably wouldn’t be worth your time or effort to fight a legal battle for compensation.

Serious Injuries

If your illness was severe enough to require hospital care, or the food poisoning victim was a child, you’ll need an experienced personal injury attorney to handle your case. If you try to settle a serious injury claim yourself, you probably won’t get the compensation you deserve.

Many restaurants are owned by big corporations who have armies of defense lawyers ready to fight claimants like you.

You may have all kinds of proof you had food poisoning, but they will argue you could have gotten it from lots of different places, including your own home.

A good attorney will review your evidence, discuss your chances of winning, and give an estimate of how much your case is worth.

Attorneys usually won’t charge for the initial consultation. Most attorneys will take your food poisoning case on a contingency fee basis, meaning the attorney’s fees won’t be paid unless your case settles or you win a court verdict.

Don’t settle for less than you deserve. Find out what an experienced personal injury attorney can do for you.

Restaurant Food Poisoning Questions & Answers

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>