Whether you broke your arm slipping on spilled salsa or were hospitalized from food poisoning, the restaurant may be liable for your injuries.
The United States boasts over 1 million restaurants in operation, generating over $799 billion in sales.¹
Whether we’re grabbing burgers from the drive-thru or sitting down to an elegant dinner in a 5-star restaurant, Americans enjoy good food and good service.
Unfortunately, not all restaurant experiences are pleasurable.
You have a right to expect compensation if you’ve become ill or injured because of a negligent restaurant. A fair settlement depends on building a strong insurance claim.
Common Restaurant Injuries and Illness
Food Poisoning: Foodborne illness is an all too common restaurant injury. Food poisoning is a catchall phrase for foodborne illnesses caused by many different kinds of bacteria, viruses, and parasites.
More than 48 million people suffer from food poisoning each year,³ causing 128,000 hospitalizations and 3,000 deaths. Wherever food is prepared and served, there’s a risk of food poisoning, including restaurants.
The five germs that cause most food poisoning in this country are:
- Clostridium perfringens
- Staphylococcus aureus
Less common, but more severe foodborne illness comes from:
- Escherichia coli
The Food and Drug Administration has more information about food poisoning, including symptoms, at Foodborne Illnesses: What You Need to Know.
Foodborne illnesses may be transmitted to customers by:
- Improper food handling, such as undercooked poultry
- Contaminated food, often raw food like seafood, eggs, and meats
- Person-to-person transmission by restaurant workers who are ill, with poor hand-washing
Slip and Falls: Restaurant customers are injured every day by slip and fall accidents. Uneven flooring, poorly maintained parking lots, and snow-covered sidewalks are hazards that lead to slip and fall injuries at any business. Restaurants have an additional high risk of customer injuries caused by spilled food and drinks.
Scalding: When the server says, “Be careful, the plate is hot!” they mean 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, it can be embarrassing and result in disfigurement.
Depending upon the location and severity 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: Accidental choking is the fourth leading cause of unintentional death in the United States, with food the most common cause of choking in the elderly.
Most of the time, a restaurant wouldn’t be held responsible if a customer choked. However, if you choked on food that wasn’t prepared correctly or that contained a foreign object, you may have a case. Moreover, while restaurants aren’t required to train staff to handle choking emergencies, they have a general duty to help, like calling 911 for medical assistance.
Puncture Wounds: Cuts and puncture wounds increase during the summer, when customers wear sandals, thin-soled shoes, 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.
Dram Shop Violations: Restaurant that serve alcohol are obligated to use good judgment when serving customers. Dram Shop laws in most states hold the restaurant liable if it continues to serve alcohol to a customer who is clearly intoxicated.
For example, if an intoxicated patron punches you in the nose over the team logo on your shirt, or crashes into your car in the parking lot, the restaurant may be responsible for your medical bills or vehicle repairs.
When is the Restaurant Liable for Injuries?
Most people don’t give much thought to injuries when entering a restaurant or while eating restaurant food. Keep in mind a restaurant injury isn’t restricted to incidents on the premises. Carry-out food orders can also cause injury or illness.
Restaurants are subject to state, county, and municipal health regulations. When restaurants violate safety regulations, the authorities can fine them or shut them down. The problem is, the penalties paid by bad restaurants don’t go to injured customers. They go directly to the government.
Fortunately, injured restaurant customers have the legal right to pursue compensation directly from an at-fault restaurant or its insurance company.
Every state has laws that hold restaurant owners to a duty of care to provide a safe environment for 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 expect.
When a restaurant fails to do everything reasonably possible to protect its customers, and a customer gets hurt, the restaurant has breached (violated) its duty of care to the customer.
When restaurant staff do something wrong, or fail to do what a reasonable person would, the restaurant is negligent. Negligence that leads to a customer’s injury or illness makes the restaurant liable, meaning responsible, for paying the customer’s damages.
Customer damages can include the cost of:
- Medical bills
- Out-of-pocket expenses
- Lost wages
- Pain and suffering
For example, if a restaurant owner uses nails in the wall to hang decorations, and a customer cuts their arm on an exposed nail, the restaurant owner will be liable for the person’s injury and treatment. The owner should have foreseen the risk of customer injury from an exposed nail. The owner was negligent for not preventing or correcting the hazard.
Sometimes it gets tricky. If one customer spills a drink on the floor and seconds later another customer slips and falls, the restaurant may not be liable. It’s unreasonable to expect a restaurant manager to have employees following each customer with a mop so the moment a customer spills a drink they could mop it up.
On the other hand, if a drink spills on the floor and it remains there for an hour before a customer slips and falls, the restaurant may be liable for the injured customer’s damages. In this case, it’s reasonable for a restaurant manager to inspect the restaurant floor at regular intervals to keep the floors clean and dry.
The injury is even more foreseeable if a customer reported the spilled drink to the manager. If management knew of the spill and neglected to send an employee to clean it up promptly, the restaurant becomes liable.
Building a Strong Insurance Claim
Knowing about restaurant liability and negligence is one thing. Proving your claim of negligence is another. You’ll need enough evidence to prove not only that the restaurant was negligent, but also that the negligence was the direct cause of your injury or illness.
Your evidence must show that the event causing your injury:
- Was foreseeable by the restaurant owner
- Constituted negligence
- Directly caused your injury
- Resulted in verified damages
It’s up to you to convince the insurance company that the restaurant is to blame for your damages. In other words, you may have suffered an injury, but if you can’t positively link the restaurant to your injury, your claim will fail.
Don’t take no for an answer. If the restaurant’s insurance company has denied your claim, contact a personal injury attorney to discuss your options.
Gathering Evidence to Prove Your Claim
Knowing what to do from the moment you’re injured can help build a stronger insurance claim.
Call for help: When you get hurt, don’t feel embarrassed and 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, ask someone to call 911.
If you leave before reporting your injury, it will be difficult to convince anyone that your injury happened at the restaurant.
For example, if a shard of broken glass on the floor punctures your foot, and you hobble away, and later decide to go back and report your injury, it’s likely the glass will be gone. 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 they saw, and to sign and date the statement.
For example, if you arrive at work minutes after picking up a breakfast burrito, and shortly after eating the burrito you began to vomit violently, ask a coworker to call for help. Ask your witness to write down everything they saw, including the time you ate 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.
Record keeping: Taking good notes and organizing your paperwork is important for your claim. As soon as possible, write down everything you remember about the circumstances leading up to your injury. Keep track of the names and contact information for the manager, witnesses, and the insurance company.
Medical records: Without medical records for your injury or illness, you won’t have a strong claim. Request copies of your medical records and bills and keep receipts for any out-of-pocket expenses. The total cost of your medical care is a big part of calculations for injury compensation.
Dealing With the Insurance Company
If you have recovered from a minor soft-tissue injury like a sprain, minor cuts, or abrasions, you can probably negotiate a fair insurance settlement on your own.
Calculate a good settlement amount by totaling the cost of your medical bills, out-of-pocket expenses, and lost wages. Add one or two times that amount for your pain and suffering.
Put your demand in writing and send it with copies of your medical bills, witness statements, and other evidence.
We’ve made it easy for you with this sample Restaurant Injury Demand Letter.
If your injury is serious, like broken bones or teeth, severe burns, food poisoning, or other high-dollar injuries, you’ll need an attorney to reach a fair settlement with the insurance company.
Insurance companies are notorious for offering less money to claimants who aren’t represented. The adjuster knows when they make their “final offer” you probably won’t have the energy or the legal savvy to fight for more money.
Some cases involve complicated legal issues. You’ll need an attorney for:
- Wrongful death claims
- Accusations of contributory negligence
- Seeking compensation from other liable parties, like a vendor who sold recalled meat to the restaurant
There’s too much at stake for you to try and handle a serious injury claim on your own. There’s no obligation, and it costs nothing to find out how a personal injury attorney can help you get the compensation you deserve.
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Restaurant Injury Claim Questions & Answers
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