Can you sue for food poisoning? How to bring a lawsuit

The law allows you to file a food poisoning lawsuit against the

• restaurants,
• grocery stores or
• food service companies

responsible for your illness. Potential damages include compensation for

• medical bills,
• lost work,
• pain and suffering, and
• punitive damages.

In this article, our California personal injury lawyers discuss the following frequently asked questions about food poisoning lawsuits:

• 1. When is a restaurant liable for foodborne illnesses?
• 2. When is a food service company responsible for food poisoning?
• 3. Can I sue the grocery store for selling expired food?
• 4. How do I prove a food service company or restaurant made me sick?
• 5. What are common foodborne illnesses?
• 6. Can a sick restaurant employee get me sick?
• 7. What damages can I recover after food poisoning?
  • 7.1. Economic damages in a food poisoning lawsuit
  • 7.2. Non-economic damages in a food poisoning lawsuit
  • 7.3. Punitive damages in a food poisoning lawsuit
• 8. Examples of food poisoning cases
  • 8.1. Chipotle food poisoning
  • 8.2. Cheesecake Factor food contamination
• 9. How do I report food poisoning from a restaurant?
• 10. Should I sign a waiver from a restaurant after I told them I got sick?
  • 10.1. What if the menu had a warning about consuming raw foods?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. When is a restaurant liable for foodborne illnesses?

A restaurant may be liable for damages caused by foodborne illnesses. Food contamination illnesses may give rise to a personal injury claim. In most cases, a restaurant would be liable for an illness under California negligence laws.

You need to prove negligence on the part of the restaurant or restaurant employees. In order to recover damages for a personal injury, you need to prove three things:

1. That the defendant owed you a duty of care;
2. That the defendant breached their duty through negligence; and
3. That the defendant’s negligence was a substantial factor in causing the harm (“causation”).¹

The restaurant’s duty of care

Restaurants owe you a duty to not serve contaminated food. When restaurants breach that duty and it causes you to get sick, you can sue the restaurant for damages.

Example: A sandwich shop does not wash tomatoes before slicing them to place onto the sandwiches. One of the tomatoes is contaminated with bacteria from animal manure. A customer who eats the dirty tomato gets sick and misses work to go to the doctor’s office. The sandwich shop may be liable to the customer because they failed to wash the produce which made the customer ill.

Restaurants have vicarious liability

Restaurant owners are responsible for the actions of their employees. Under “Respondeat Superior” laws, an employer can be held vicariously liable for the negligence of the employees.²

Example: Steven orders a hamburger at a diner in Culver City. The cook making the hamburger went to the bathroom and did not wash his hands when he came back to the kitchen. The cook passes bacteria onto the burger when putting it on a plate. Steven eats the hamburger and contracts hepatis.

Steven files a lawsuit against the diner. The diner owner says it is the employee’s fault for not washing his hands, against company policy. However, under California law, the diner is liable for the employee’s negligence because making and serving the dish was within the employee’s ordinary scope of employment. If Steven can prove these facts in court, he will likely prevail in a lawsuit for injuries suffered at a restaurant.

Food safety tips

According to the World Health Organization (WHO), the five keys to safer food include:

1. Keep hands and food preparation areas clean;
2. Separate raw and cooked foods;
3. Cook food thoroughly;
4. Keep food at safe temperatures; and
5. Use safe water and raw materials.

You can get food poisoning in a number of different ways but generally involves improper food handling by the company or employees. California law requires all food handlers to have a California Food Handler Card.³

Food handlers and restaurant managers know or should know how to avoid food contamination. When you get sick from the food, it is often because someone is not following food safety rules.

2. When is a food service company responsible for food poisoning?

When a food service company provides food with bacteria or other pathogens, you may not know whether the restaurant was responsible for food poisoning or whether it was the supplier. Under California law, you may be able to file a lawsuit based on product liability laws.

Under product liability laws, anyone who manufactures or sells a defective product is strictly liable for any injuries caused, even if that person or company was not negligent.⁴

In food poisoning cases, you will generally have to prove four things:

1. The defendant distributed or sold a contaminated or defective product;
2. The product was contaminated or defective when it left the defendant’s control;
3. You used or consumed the product in a foreseeable manner; and
4. You suffered harm as a result of the defect.⁵

What food service companies are

Food service companies include those that provide ingredients and food to restaurants. This includes

• national food service providers like Aramark and Sysco, as well as
• local providers of meat, produce, and other products.

These companies could be providing contaminated fresh produce, eggs, meats, or other food products to local restaurants.

Food service companies also include those that sell packaged foods like salads and sandwiches. This could include grab-and-go type foods sold at

• grocery stores,
• gas stations, or
• the airport.

These meals are often prepared in large facilities and distributed across the area. Just like with other restaurants, using contaminated food products or employees mishandling food could result in you getting sick.

Example: Scramble Foods makes packaged egg salad sandwiches for a chain of convenience stores. The sandwiches are stored in a refrigerator before they are shipped out. However, one day the refrigerator breaks and no one knows about it. The sandwiches are delivered to stores although the eggs have gone bad from not being refrigerated.

Clem buys one of the sandwiches from a convenience store in Burbank. Clem gets sick from eating the foodborne bacteria in the bad egg salad. Clem can file a claim against Scramble Foods and the convenience store under product liability laws. Even if no individual was negligent, the foodservice company sold a contaminated product that harmed a customer and may be liable to Clem for any injuries caused.

3. Can I sue the grocery store for selling expired food?

Selling expired groceries may not be enough to file a personal injury lawsuit against the grocery store. However, if the grocery store sold expired food that caused you to get sick, the store may be liable for any injuries.

Under product liability laws and/or negligence laws, the grocery store may be responsible for selling or providing contaminated food that resulted in harm to the customer. The manufacturer or supplier of the product may also be liable.

If you purchased expired food from the grocery store you may be able to return your purchase to the store for a refund. If the store does not offer a refund, you may be able to file a lawsuit in small claims court.

However, you cannot file a personal injury lawsuit against a grocery store for selling expired food unless you were injured or harmed as a result.

Are food expiration dates regulated?

Food expiration dates are generally not regulated. One of the only expiration dates that federal law regulates is for infant formula.⁶

For all other foods, “expiration” or “sell by” may just be provided by the manufacturer without any basis in science. Many foods are safe to eat even after the “best by” date.

4. How do I prove a food service company or restaurant made me sick?

If you get sick from a virus or bacteria, it can be difficult to know where the contamination originated. Different bacteria can affect people differently, with varying “incubation periods.” Some infections can make you feel ill within a matter of hours while some may not show up for days.

For example, signs and symptoms of an E. coli infection can take from one day to over a week to develop. This means that if you get sick from food poisoning on a Sunday, the source of the contamination could theoretically be from anything you ate during the week before.

Moreover, listeria symptoms generally start from 1 to 4 weeks after eating contaminated food but could take up to 70 days.⁷

Evidence of the source of food contamination

You may be able to prove that a restaurant or foodservice company made you sick

• by using direct evidence of contamination or
• by showing a number of similar illnesses from the same source.

If you get sick from eating or drinking something, you may need to visit your doctor or other healthcare for testing. Tests can often determine the type of bacteria, virus, or pathogen that may be responsible for your illness. These results can be tied directly to the

• restaurant,
• source of food, or
• an employee at a restaurant.

In some cases, you may have leftovers from the meal that could also be tested for bacteria or contamination.

Example: Ed picks up an order of chicken wings from his favorite restaurant in Pasadena. Ed eats a couple of wings and places the rest of the meal in his refrigerator. Two days later, Ed falls ill and has to go to the doctor. Ed tells his doctor he suspects he got sick from the chicken.

Lab tests show bacteria from the leftover undercooked chicken wings matches the bacteria that caused the illness. This is good evidence that Ed’s lawyer can use to prove the restaurant was responsible for serving Ed contaminated food.

Even if you never get tested for the type of bacteria responsible for your illness, you may have a claim against a restaurant where there has been a larger outbreak of illness.

Example: Jane eats at a sushi restaurant in Torrance. The next day, Jane suffers vomiting and diarrhea and has to stay home from work. Jane watches the local TV news and sees a story about a dozen other people got sick after eating at the same sushi restaurant. It may be likely that the restaurant was responsible for Jane’s sushi poisoning illness.

5. What are common foodborne illnesses?

There are many types of food-related bacteria and viruses that can make you sick. According to the Centers for Disease Control (CDC), researchers have identified more than 250 foodborne diseases.⁸ Common foodborne illnesses include:

• E. coli (Escherichia coli)
• Campylobacter
• Cryptosporidium
• Clostridium perfringens
• Botulism (Clostridium botulinum)
• Giardia
• Listeria
• Norovirus (Norwalk virus, calicivirus, viral gastroenteritis)
• Salmonellosis (Salmonella)
• Scombroid Fish Poisoning
• Shigella
• Staphylococcus aureus (Staph)
• Toxoplasmosis (Toxoplasma gondii)
• Vibrio infections (Vibrio parahaemolyticus)
• Yersinia
• Shiga toxin-producing E. coli
• Hepatitis A

Commonly contaminated foods

Any type of food can be contaminated with bacteria or viruses, as well as non-food items like plates and silverware. The foods most associated with foodborne illnesses include:

• Raw animal meat and poultry
• Raw eggs
• Unpasteurized milk
• Raw shellfish
• Fruits and vegetables contaminated with animal or human waste
• Raw sprouts
• Unpasteurized fruit juices
• Food touched by a person with an illness
• Peanut butter

Vulnerable victims of food poisoning

These illnesses can cause a variety of symptoms, ranging from minor to severe. In some cases, food poisoning can lead to permanent disability or death.

Foodborne illnesses are especially dangerous to the highly susceptible population that includes those:

• With an impaired immune system;
• Preschool-age children;
• Elderly;
• Sick; or
• Confined to facilities that provide custodial care.

Food poisoning symptoms

Common symptoms of food poisoning from eating tainted or contaminated products include:

• Diarrhea
• Abdominal cramps
• Nausea
• Fever
• Fatigue
• Vomiting
• Loss of appetite
• Weight loss

More serious symptoms, from illnesses such as botulism or hepatitis, may include:

• Blurred vision
• Difficulty swallowing
• Slurred speech
• Dry mouth
• Muscle weakness
• Muscle aches
• Confusion

6. Can a sick restaurant employee get me sick?

Sick restaurant employees are a common cause of sick customers. When a cook, server, or other restaurant worker is sick, they can transfer the illness to you.

In some cases, managers know the employee is sick but still allow — or even require — them to work handling food.

According to a study by the Environmental Health Specialists Network (EHS-Net), 12% of food service workers reported working when they were sick with vomiting or diarrhea. These service workers are more likely to work when they are sick when the restaurant:

• Is busy;
• Does not have a policy that requires workers to tell a manager when they are sick;
• Does not have on-call or replacement workers available; or
• Has a manager with less than 4 years experience.

Proving transmission from employees

Unfortunately, when a sick restaurant employee gets you sick, it can be difficult to identify the person responsible for passing on the illness. Illnesses like a cold or flu can take days to show symptoms. By that time, you may not know where the germs came from.

You may only find out that a restaurant worker was responsible for your illness if the employee causes a number of people to get sick. Certain illnesses may be a bigger threat to spreading diseases in restaurants, including the so-called “Big 5”, or:

• E. coli
• Hepatitis A
• Shigella
• Salmonella
• Norovirus

According to the Food and Drug Administration (FDA), a food employee infected with one of these pathogens sheds hundreds of thousands of pathogens in their feces that can be transmitted to food, even with handwashing. Because of this, any employees diagnosed with these illnesses must be reported to the local health department.⁹

7. What damages can I recover in a food poisoning lawsuit?

Upon suing for food poisoning, you may be able to recover compensatory damages, which compensate you for your losses in a personal injury case. Compensatory damages after food poisoning could include:

• “Economic damages,” such as medical bills and lost wages, and
• “Non-economic damages,” such as pain and suffering.

In some cases, you could also be awarded punitive damages.

7.1. Economic damages in a food poisoning lawsuit

Economic damages, or pecuniary damages, generally have a clear dollar value attached. This includes costs you lost “out-of-pocket” related to getting sick. For a short-term illness, this generally includes:

• Medical bills,
• Prescription medication, and
• Lost wages.

However, if someone is permanently injured or disabled as a result of getting sick from tainted meat or produce, economic damages could include lost earning capacity.

7.2. Non-economic damages in a food poisoning lawsuit

Non-economic damages can be more difficult to calculate. These damages may not have a clear dollar value, and include subjective losses such as:

• Pain and suffering,
• Emotional distress,
• Physical impairment (such as loss of the use of a limb),
• Disfigurement, and
• Loss of life enjoyment.

7.3. Punitive damages in a food poisoning lawsuit

Punitive damages are awarded to you as a way to punish the defendant. These damages are used

• to penalize the defendant for extremely reckless behavior or intentionally harming you, and
• to prevent similar types of harm from happening in the future.

Under California Civil Code § 3294, punitive damages are allowed where you can show by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.¹⁰

Example: Ray is the owner of a pizza restaurant in Glendale. Ray wants the company to make a higher profit and finds someone to sell him expired ham that he knows has gone bad. Ray prints out some fake labels to make it look like the ham is fresh and places it on the packaging.

Blair orders a Hawaiian pizza from the restaurant and gets sick from eating expired ham. Blair may be able to recover compensatory damages for any losses. However, because Ray intentionally misrepresented the ham quality and concealed the fact that the meat was bad, Ray may also be subject to punitive damages.

8. Examples of food poisoning cases

People fall ill from eating contaminated products all the time. However, it generally takes dozens of people to get seriously ill before the public hears about food poisoning cases. There have been a number of food poisoning cases over the past decade including:

• 2015 – Chipotle Mexican Grill – From October to November, at least 45 people contracted E.Coli across a number of states, including California. At least 16 victims were hospitalized.
• 2015 – Cucumbers – Over 300 people were sickened by Salmonella-contaminated cucumbers, resulting in at least 2 deaths.
• 2014 – Cheese – At least 7 children were infected with listeria linked to cheese, including one infant death in California.
• 2013 – Chicken Salad – At least 26 people in 3 states were infected with E.coli possibly caused by eating prepared chicken salad.
• 2013 – Foster Farms Chickens – Over 600 people may have been infected with Salmonella related to chicken products.
• 2012 – Peanut Butter – More than 40 people in 20 states were sickened by Salmonella-contaminated peanut butter products.
• 2011 – Ground Turkey – A least 76 people in multiple states became ill related to fresh and frozen ground turkey, with one person in California dying from the infection.
• 2009 – Peanut Butter – More than 700 people got sick and 9 died from Salmonella-tainted peanut butter.

8.1. Chipotle food poisoning

The popular restaurant chain Chipotle has had a few run-ins with food poisoning outbreaks. Chipotle Mexican Grill has had a number of food safety contamination events since about 2008. Outbreaks include:

• Hepatitis
• Norovirus
• Campylobacter jejuni
• E.coli
• Salmonella

2015 outbreak

In 2015, the restaurant chain had large outbreaks involving Salmonella, E. coli, and Norovirus at multiple locations across the country, including California. This resulted in the closing a number of restaurants. The sources of these illnesses may have included:

• Sick employees working with food
• Lack of handwashing
• Infected employees
• Contaminated produce
• Temperature control

Simi Valley outbreak

Health inspectors in Ventura County found numerous health code violations at a Simi Valley store. The restaurant was allowed to remain open and continued to operate. A New York Times article reported the number of victims was 207, higher than previously reported.

A federal class-action lawsuit was filed against Chipotle for allegedly allowing a sick kitchen manager to work in the restaurant before sending the sick worker home. The restaurant then cleaned the restaurant before notifying the Ventura County Environmental Health Division, which hurt the investigation.

Other outbreaks

That same year, there were also outbreaks of Salmonella in Minnesota and E. Coli in

• Washington,
• Oregon,
• Massachusetts,
• Kansas, and
• Oklahoma.

Chipotle eventually closed all their locations for a few hours for a food safety meeting, hired a new head of food safety, and implemented a policy that employees have to wash their hands every half hour. However, the next year, more than 130 people reported possible norovirus-like symptoms related to a Chipotle in Virginia.

8.2. Cheesecake Factory food contamination

Another large food chain that has had issues with claims of food poisoning includes The Cheesecake Factory. The restaurant chain, known for large portions and its signature cheesecakes, operates more than 100 restaurants, including more than 35 in California.

Scombroid poisoning

In 2013, a man ordered a mahi-mahi dish at The Cheesecake Factory. The man reportedly felt like something was wrong within minutes of eating the fish. He began to feel dizzy, passed out, and fell onto the floor. The man was rushed to the emergency room and diagnosed with scombroid poisoning.¹¹

Scombroid poisoning is a type of foodborne bacteria that occurs when fish is

• not properly refrigerated and
• starts to rot.

Cooking food at a high temperature is not enough to prevent the contamination. The victim filed a lawsuit against The Cheesecake Factory, which the food chain settled before going to trial.

9. How do I report food poisoning from a restaurant?

If you become sick after eating at a restaurant and suspect food poisoning you should see a doctor. While most food poisoning causes relatively minor symptoms, foodborne illnesses can be serious and even lead to death.

Your doctor may also be able to test to identify the type of illness or bacteria. This can help you

• trace the source of the food poisoning and
• help prevent others from getting infected.

Contact your local health department

You may also want to report food poisoning to your local health department. Reporting foodborne illnesses to health officials can help them identify potential outbreaks.

If possible, you should gather evidence surrounding the food poisoning. This may include:

• Keeping leftovers for testing
• Keeping receipts from the meal
• Making a list of where you ate, what you had, and when
• Keep a diary of your symptoms
• Identify other people who were eating at the restaurant at the time
• Any other evidence related to the incident

Potential damages from a lawsuit

If you suffered an injury as the result of food poisoning, you should contact an experienced food poisoning lawyer in California. A personal injury attorney with experience in handling food contamination cases can get you compensated for your

• medical expenses,
• lost wages, and
• any other damages.

10. Should I sign a waiver from a restaurant after I told them I got sick?

When people get sick after eating at a restaurant, they often contact the restaurant to complain or report the sickness. The restaurant may apologize and offer

• a refund or
• a free meal.

However, you should be careful if the business asks you to sign anything.

Pros and cons of waivers

A restaurant may offer a refund, gift certificate, or replacement meal as a sign of good customer service for a bad meal. The business might also try and get you to sign a waiver as a condition of accepting the payment or credit.

The waiver may be a legal waiver of your right to sue. This could mean that you are agreeing not to file a lawsuit against the company in exchange for some compensation, even if it is as little as a free meal.

Before you sign away your legal rights, consult a lawyer about your rights and potential damages.

10.1. What if the menu had a warning about consuming raw foods?

Many menus have an advisory statement warning about the risks of consuming raw or undercooked foods. This advisory may look something like the following:

• “Consuming raw or undercooked meats, poultry, seafood, shellfish or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions.”

California’s consumer advisory

The California Retail Food Code requires a Consumer Advisory for certain foods that are sold raw, undercooked, or not processed to eliminate pathogens. However, an advisory is not the same as a California liability waiver agreement. This includes:

• Beef
• Eggs
• Fish
• Lamb
• Veal
• Pork
• Poultry
• Shellfish
• Milk
• Salad dressing
• Sauce¹²

Raw or undercooked foods can be served if either of the following requirements are met:

1. You specifically order that the food be individually prepared less than thoroughly cooked; or
2. The food facility notifies you, orally or in writing, at the time of ordering, that the food is raw or less than thoroughly cooked.¹³

Common restaurants with raw food warnings

These types of raw food warnings are most common in restaurants serving:

• Sushi
• Steaks
• Hamburgers (can be cooked to order)
• Oysters on the half shell
• House-made Caesar salad dressing (with raw egg)
• Desserts made with raw eggs, like Tiramisu.

Just because a menu has a warning about consuming raw or undercooked foods does not make them immune to a lawsuit. Like any other restaurant, if you can show employee negligence in preparing, handling, or serving the food that caused you to get sick, you may have a claim for damages.

Example: Danny was eating dinner at a tapas restaurant in Santa Monica. Danny ordered seared Ahi tuna, raw oysters, a Caesar salad, and a house-made eggnog cocktail. The menu has a warning that eating raw foods can increase the chance of foodborne illnesses.

Danny feels sick the next day and has abdominal cramps, fever, nausea, and has to go to the hospital. Danny misses 3 days of work as a result of his symptoms.

The illness could have been caused by an employee not properly washing his or her hands, cross-contamination of raw and cooked foods, or using tainted produce. Danny may be able to file a lawsuit against the restaurant for negligence, even though the menu had a warning about eating raw foods.

Call us for help…

For questions about food poisoning lawsuits in California or to discuss your case confidentially with one of our skilled California personal injury attorneys, do not hesitate to contact us at Shouse Law Group. For cases in Nevada, please see our article on food poisoning lawsuits in Nevada. For Colorado cases, visit our page on filing a food poisoning lawsuit in Colorado.

We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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