Although most restaurants are horrified at the idea of serving food that is dangerous to their patrons, by virtue of carelessness, ignorance, laziness, cost-cutting, and sometimes through a malicious act by an employee, at times restaurant patrons are served food that is contaminated.
Food contamination can come in a range of forms, some more dangerous than others. When served contaminated food, whether the result is injury, sickness or offense, a restaurant patron may have legal recourse against the restaurant.
Pretty much every person who patronizes a restaurant will at some point in time be in a party where somebody finds a hair in their food. A restaurant will typically be apologetic, offer to replace the tainted food, and perhaps offer a free drink or food item. But at other times the consequences of having a foreign object in your food will be more serious, more injuries or more offensive.
Items found in food may include:
Insect Parts: Sometimes a food item will contain an identifiable insect part, or even an entire insect. The presence of an insect raises concerns both about the hygiene and safety not only of the item served, but also of the restaurant in general.
Pits and Shells: When you order an entree that includes a shellfish, a pitted fruit like a cherry, or a similar item, there is a chance that a piece of shell or pit will make it into the finished dish. Although in most cases injury does not result, sometimes the item may cause a diner to suffer a laceration, tooth damage, or to choke.
Allergens: People with food allergies will often confirm with a restaurant that the allergen is not an ingredient of the food that they are ordering or, for more severe allergies, is not used on the premises. At times a restaurant will give false or misleading information about allergens, or accidentally contaminate a dish with an allergen during its preparation.
Objectionable Ingredients: A patron who for health, philosophical or religious reasons avoids certain food ingredients may take care to verify that a restaurant does not use those ingredients at all, or does not use them in the items the customer orders. Intentionally or out of ignorance, sometimes a restaurant will mislead a customer about its ingredients, or accidentally cross-contaminate a dish during preparation or plating.
Maliciously Placed Items: Unfortunately, although rare, there are many well-documented incidents of restaurant employees playing pranks on customers or taking revenge against a patron who offended them by placing a foreign object or body fluids into their food.
A foreign object may enter the food supply even before an ingredient reaches a restaurant. If that happens, it may become necessary to investigate to determine the source of the contamination and to determine which companies along chain from manufacture, through distribution, through sale, are potentially liable for the contamination.
Foodborne Diseases: Although mostly bacterial in nature, diseases that can be transmitted through food also include viruses and parasitic diseases. The risk of foodborne illness can be significantly reduced through proper food handling and preparation techniques.
Toxins and Poisons: Poor food storage can cause foods to spoil and potentially become toxic, or may expose foods or ingredients to toxic substances such as cleaning solutions or other chemicals.
Sick Workers: Sometimes a restaurant will do everything correctly except identify and send home a worker who has a contagious disease or who doesn't follow appropriate hand-washing protocols, resulting in their passing a disease or pathogen to a patron.
As with foreign objects, food may become contaminated at any point from manufacture through the point of final sale.
The most common basis for claiming that a restaurant is liable for food contamination is negligence. Restaurants have a duty to serve to their customers food that is safe to eat, and if they engage in actions that they know or should know could result in their serving unsafe food, causing a patron to become injured or sick, they can potentially be held liable for the damages suffered by the patron.
In cases of deliberate contamination of food, a restaurant may be liable for the acts of an employee under theories of negligent hiring, training and supervision.
Some cases involve a greater degree of culpability by a restaurant, such as the use of food products that they know contain allergens even as they represent to their customers that their food is allergen-free.
When a finished food product is contaminated with an object such as a seed, pit or piece of shell, with that object having come from an item used in the food product, it is important to examine state law to determine a restaurant's potential liability. For example, state law may provide that a restaurant patron is implicitly on notice that food prepared from products such as pitted fruits will occasionally include a full or partial pit, and that the patron should thus be cautious about consuming food such as cherry pie. Other states are less forgiving.
For other objects, such as a broken piece of a hypodermic needle in a piece of steak, some states may focus on whether the restaurant (or anybody in the supply chain) could reasonably have detected the object prior to its service, while others may impose a strict liability standard under which liability flows from the inherently unsafe nature of a food containing a dangerous object without regard for the restaurant's fault.
When a restaurant serves food contaminated with an identifiable foreign object, it is easy enough to identify the restaurant as the most recent source of contamination.
For some contamination, it may be necessary to investigate further to determine if the restaurant was the original source or if contamination occurred before the food reached the restaurant. In many cases it will be obvious where a foreign object was introduced into food, but other cases may require significant investigation. For example, the presence of insect parts or rodent hair could arise at any point from the time a food item was initially harvested or prepared through the time it left the restaurant's kitchen.
For foodborne illness, finding the source of contamination may be more difficult. Many people who become ill due to contaminated food are not aware that their illness is foodborne.
Even when an illness is unquestionably foodborne, identifying its source may be complicated:
Tracking the Source of the Illness: If a person with food poisoning seeks treatment at a hospital, they may be tested to determine the exact nature of their disease. Certain illnesses must be reported to government agencies that track diseases. If an outbreak is detected, the government agency may be able to track the outbreak back to a specific source, be it a restaurant, food supplier, manufacturer, slaughterhouse or farming operation. However, for isolated cases it will often be difficult to identify where a patient was exposed to a pathogen.
Identifying the Source of Infection: Many people make incorrect assumptions about where they consumed contaminated food, such as attributing an illness to their most recent meal when in fact the contamination occurred at a prior meal. Some foodborne illnesses have a relatively rapid onset, but others have considerable incubation periods before symptoms appear, with some diseases not becoming symptomatic for days, even a week or more.
Proving the Restaurant is the Source: Although in some cases the facts will leave little to no question that a restaurant was the source of a specific foodborne illness or outbreak, for common foodborne illnesses such as salmonella, or where there is only one person claiming infection, it can be difficult or even impossible to prove that a specific restaurant was the source of the illness.
In the most extreme cases, people have little difficulty establishing damages from food contamination cases. Serious cases of foodborne illness or allergic reaction can result in acute medical distress, hospitalization, and in some cases may even be fatal. A cracked tooth or other dental injury from an object, or a laceration of the mouth or tongue, will be immediately noticed and associated with the object. But it is not necessary that an injury be physical in order for there to be a potential recovery of damages.
Recoverable damages may include:
Pain and Suffering: Compensation for the physical distress causes by illness or injury.
Lost Wages: Where an illness causes a restaurant patron to miss work, they may be able to recover the wages they would have earned had they been able to work.
Emotional Distress: Particularly in cases where contamination is deliberate, a restaurant patron may be able to recover damages for emotional distress even if they have little or no physical injury.
Although minor cases of food contamination may be best handled through a discussion with the restaurant or its insurance company, when injuries are more serious or are deliberately caused it makes sense to consult a lawyer who is familiar with food contamination cases and who can fully assess the liability of the restaurant and other entities that may be responsible for the injury.