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Can You Sue For Food Poisoning?


With the holidays here, the only thing that many people can think about is food. While anyone only ever wants to think about the good aspects of feasting, there are some that have no choice but to consider the bad too—such as past victims of food poisoning. If you have been struck ill by food poisoning before, you know better than most how important it is to check the expiration date on canned goods and meats and to ensure that everything is washed and cooked properly before consumption. You also understand the importance of knowing where your food comes from, how it was delivered to your local grocer, and how it was stored until it makes it onto your plate. However, if you eat out at a restaurant, or if your family prepares a holiday spread for everyone to enjoy, it is hard to remain informed on such details. Many times you just have to trust that your food will not make you sick.

But what if it does? If you receive food poisoning from a meal you ate at a restaurant or even from the food that your aunt prepared, should you just chalk up the meal as a loss, or can you pursue legal remedies?

Theories of Liability in Food Poisoning Cases

When an individual files a personal injury claim for food poisoning, they must do so under the category of product liability. In essence, the food is a defective product that caused you injury. There are three legal theories you can go with in a product liability case:

  1. Strict Product Liability. Strict product liability relieves you of the responsibility of having to prove that the distributor, supplier, or manufacturer was not careful in the making or distribution of the product, thereby resulting in the contaminated food product responsible for your illness. In a strict product liability case, you must simply prove that the food you ate was contaminated, and that it lead to your illness.
  2. If strict liability is not an available theory to go with, you may argue that the distributor, supplier, or manufacturer was negligent in their handling of the food. In order to prove negligence, you must be able to show that the defendant’s carelessness lead to the contamination and your subsequent illness. For instance, if you can prove that the restaurant you ate at failed to refrigerate a shipment of steak, and a piece of steak from that shipment made you ill after eating it, your theory of negligence will stand.
  3. Breach of Warranty. In most states – Florida included – food suppliers and distributors must meet minimum standards for making, storing, and preparing their products. This is known as an “implied warranty” (Blanton v. Cudahy Packing Company 154 Fla. 872, 19 So.2d 313 (1944)). Selling or serving contaminated food to the general public may be considered a breach of such a warranty.

Additionally, some food manufacturers and processors include an implied warranty with their product. For instance, a company that sells pre-packaged lettuce may include on the bag, “Triple-washed for your protection!” If you were to get ill from that lettuce, you may be able to sue on grounds of breach of warranty.

How to Prove Your Food Poisoning Claim

Once you determine which theory you want to sue under, you must then determine whether or not you have the evidence to back up your claim. Ultimately, you must prove the following:

  • That the food you ate was contaminated. You must be able to identify the exact food that made you sick, and not just state at which meal you were “poisoned.” This can be difficult, especially as a) there is typically a time delay between eating a spoiled food and getting sick and b) most people eat more than one item per meal; and
  • That the contamination made you sick. It is not enough to say that you were sick after eating a contaminated food; you must further prove that the contamination was the cause of your illness. The most effective way to prove this is to take a stool sample and have it tested by a lab for contaminants. While this may gross out most people, it is the best way to back up your claims of food poisoning, and therefore greatly increases your odds of winning your case.

Consult with an Orlando Defective Products Liability Lawyer

If you recently suffered from food poisoning, and if you believe that it could have been prevented, contact the Orlando personal injury lawyers at The Pendas Law Firm for an immediate evaluation of your case. Give us a call at 1-888-LPENDAS or schedule a consultation online today.

The Pendas Law Firm also serves clients in the Jacksonville, Tampa, Fort Lauderdale, Miami, West Palm Beach, Daytona, Bradenton, and Fort Myers areas.



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