PROTECTING THE CONSUMER

YOU ARE WHAT YOU EAT, FROM A LEGAL PERSPECTIVE

For those of you with weak stomachs, you may not want to read the rest of this article. There. You have been warned. Please don’t e-mail me to tell me how disgusting this article is and that I have ruined your appetite. I already know. But, what we must talk about today are injuries resulting from improper food preparation, contaminated food, and foreign substances in food.

Personal injuries caused by food are relatively uncommon, considering how much food is prepared for consumers every day in restaurants throughout the United States. But, injury to the human body caused by food can run the gamut from a very minor gum laceration due to a sliver of glass versus the extreme cases where death has been caused by improperly prepared food. Such was the case at a Jack in the Box several years ago.

Food cases fall under product liability law. As a general rule, a food preparer is strictly liable for injuries caused to a person if the injury-causing substance is foreign to the food. For example, maggots in a chicken breast or a piece of glass inside of an ice cream cone are typical scenarios. Assuming that ingestion of the foreign substance creates a bodily injury, the preparer and seller of the food is liable for your injuries.

It is a different scenario, however, when you are injured by a food product which has something in it inherent to the food but shouldn’t be there. For instance, in one case we handled, a fish bone was ingested which came from a McDonalds, Fillet-o-Fish sandwich. The client in that case ingested the sandwich and the bone lodged in her esophagus, requiring her to have surgery. While McDonalds is not strictly liable for the injury, the manufacturer of the fish patty was negligent by not being careful to avoid having bones in a piece of fish labeled “fillet.”

Food preparers may also be strictly liable for failing to warn patrons that certain foods contain common allergy creating agents. Walnuts as an ingredient is a perfect example. Likewise, food preparers must prepare food properly, such as making sure that poultry is cooked to a bacteria killing temperature. We have also seen food borne illnesses such as Hepatitis A and E.coli contracted as a result of a food preparer’s failure to wash his hands after using the restroom.

Injuries caused by food poisoning can be difficult to prove because it is the burden of the injured party to prove whether the food that was ingested was contaminated. Since most people eat throughout the day, it becomes very difficult to determine what food caused the injury or where the food came from.

Foods containing foreign substances which have caused an injury are far easier to prove than contaminated food injuries. The important thing to remember when there is a foreign object found in food is to keep the foreign object, as well as the food itself, and do not allow your food preparer to take the food or the foreign body away from you. This is the only evidence which will allow you to prevail in this type of a case.

It is nearly impossible to avoid these types of injuries when eating and dining out. We are at the mercy of health conscious food manufacturers, as well as food preparers. Food contamination or poisoning can happen at any restaurant at any time, even at the finest of restaurants in the world. If you are indeed injured as a result of poorly prepared food or food which has foreign substances in it, know that you have a right to be compensated for your personal injuries.

Use common sense when choosing restaurants, eating only at restaurants with good reputations and where cleanliness is an obvious priority. Bon Appetit!