Can You Sue for Food Poisoning?

Posted on March 8, 2022

Depending on the facts of a given case, a victim of food poisoning can try to file a personal injury lawsuit based on a theory of negligence, product liability, or breach of warranty. A successful claim may result in a party receiving compensation for any losses incurred because of the food poisoning. This includes compensation for

• medical bills and medical expenses,
• lost wages, and
• pain and suffering.

Note that some of the most common foods associated with foodborne illnesses include:

• raw animal meat and poultry,
• raw eggs,
• unpasteurized milk,
• raw shellfish, and
• fruits and vegetables contaminated with animal or human waste.

Please also keep in mind that common symptoms of food poisoning include:

• diarrhea,
• abdominal cramps,
• nausea,
• fever,
• fatigue,
• vomiting, and
• loss of appetite.

1. Can a person try to file a food poisoning lawsuit based on negligence?

Yes, depending on the facts of the food poisoning case. Alleged victims of food poisoning can try to assert that:

1. the party manufacturing or supplying contaminated foods or food products acted negligently, and
2. this negligence caused the victim to suffer food poisoning with resulting damages.

In the context of a food poisoning lawsuit, “negligence” is a legal term that means a party failed to exercise reasonable care in making or distributing certain foods or food products. ^{1 2}

Consider, for example, a seafood market/retailer that is aware that some of its shellfish have been contaminated by a recent red tide. The market knows that human ingestion of the shellfish could cause cases of food poisoning. Nevertheless, the retailer decides to sell the contaminated shellfish to the public.

Here, the seafood market’s decision is likely a negligent one, in so far that knowingly selling contaminated food products to the public is unreasonable under the circumstances. If a party purchased shellfish from the retailer and became sick, he/she could have a food poisoning claim (based upon negligence) against the market.

Note that negligence claims are often common against:

• grocery stores,
• restaurants, and
• distributors.

2. What about a product liability lawsuit?

In certain personal injury cases, a person injured by food poisoning may be able to file a lawsuit based on a state’s product liability laws.

Under product liability laws, anyone who manufactures or sells a defective product (here, a defective food product or food items) is strictly liable for any injuries caused, meaning that a party can be held responsible for a person’s injuries even if that person or company was not negligent.³

In the context of a food poisoning case, a plaintiff will generally have to prove four things to succeed in bringing a product liability claim:

1. the defendant distributed or sold a contaminated or defective food product,
2. the product was contaminated or defective when it left the defendant’s control,
3. the plaintiff used or consumed the product in a foreseeable manner, and
4. the plaintiff suffered harm as a result of the defect.⁴

Note that these types of personal injury claims are often brought against food service companies that provide ingredients and food products to restaurants. These companies can take the form of national food service providers, but they can also take the form of local providers of

• meat,
• produce, and
• other products

In addition, food service companies can include those entities that sell packaged foods like salads and sandwiches. This could include grab-and-go type foods sold at grocery stores, gas stations, or airports. These meals are often prepared in large facilities and distributed across the U.S.

3. Can food poisoning/personal injury cases be based on a breach of warranty claim?

Possibly, yes. Most states impose minimum food safety standards on certain food products. These standards are generally referred to as warranties.⁵

An example includes pre-packaged veggie trays, which often contain labels indicating that the veggies have been double, or triple washed.

If a person becomes sick because of a product, and the sickness can trace back to a violation of a warranty, then the victim of food poisoning may have a claim based on a breach of a warranty.

4. What are common foodborne illnesses?

There are many types of food-related bacteria and viruses that can make people sick. According to the Centers for Disease Control and Prevention (CDC), researchers have identified more than 250 foodborne diseases.⁶ Some of the most common foodborne illnesses include:

• E. coli (Escherichia coli),
• Botulism (Clostridium botulinum),
• Campylobacter,
• Hepatitis A,
• Listeria,
• Norovirus (Norwalk virus, calicivirus, viral gastroenteritis),
• Salmonellosis (Salmonella), and
• Shigella.

5. What damages can you recover in a food poisoning lawsuit?

Food contamination cases can result in serious injuries that involve extensive hospitalization and require prolonged medical attention and medical treatment.

Not surprisingly, food poisoning victims often bring liability claims to help recover the expenses incurred in these cases.

If a party is successful in brining a claim, he/she can often receive compensation for the following:

• medical bills and expenses,
• lost wages,
• future lost earning capacity,
• out-of-pocket expenses,
• pain and suffering, and
• emotional distress.

Note, though, that victims will be better situated to receive this compensation after receiving legal advice from an experienced food poisoning lawyer or a personal injury attorney.

Please keep in mind that most personal injury lawyers/law firms provide free consultations, meaning parties can get their legal questions answered without spending a dime.

6. What is the law in California?

California law on food poisoning lawsuits generally follows the points mentioned above.

Victims can file a lawsuit based on a negligence, product liability, and/or breach of warranty theory.⁷

Further, injury victims can try to recover damages for the compensation stated above.

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