How to File a Food Poisoning Lawsuit in Colorado

Victims of food poisoning in Colorado can file lawsuits against the party responsible for their illness. This typically includes:

  • grocery stores;
  • restaurants;
  • food trucks; and
  • food service companies.

Personal Injury Cases for Food Poisoning

A personal injury lawsuit can be filed against the party responsible for causing a person's illness. A personal injury lawsuit is based in Colorado negligence law.

An injured person must prove that he or she was injured by a breach of the duty of care that caused him or her to get sick.

Proving Your Case

Proving a case related to food poisoning can be tricky and can be nearly impossible without the help of a personal injury attorney with years of experience in this field.

To prove this kind of case, an attorney can present:

  • evidence of other instances of the same type of food poisoning from the same source;
  • expert evidence connecting the illness to the food provider;
  • medical evidence about a person's injuries; and
  • medical evidence concerning the cause of the illness.

Below, our Colorado personal injury attorneys address frequently asked questions about food poisoning in personal injury lawsuits and the injuries you may have suffered:

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Proving a case related to food poisoning can be tricky and can be nearly impossible without the help of a personal injury attorney with years of experience in this field.

1. When is a restaurant liable for causing my food poisoning illness in Colorado?

Foodborne illnesses that are the fault of the restaurant who served contaminated food can be held responsible through a personal injury lawsuit in Colorado.

Personal injury lawsuits are based in Colorado negligence laws. To prove negligence occurred, a person who is injured (the plaintiff) must prove:

  • that the person being sued (the defendant) owed a duty of care to the plaintiff;
  • that the defendant breached that duty of care;
  • that the defendant's breach was the cause of the injury; and
  • that the plaintiff sustained monetary damages from the injuries.1

1.1 What is a restaurant's duty of care and when is it breached?

A restaurant has a duty of care not to serve contaminated food and not to get its customers sick.

This is true whether the restaurant is:

  • a fast food restaurant, or
  • an expensive steakhouse restaurant.

Restaurants are also responsible for its employee's actions under Colorado's respondeat superior laws.

Respondeat superior is a legal term that means a person is responsible for the acts of his or her "agents" or employees. If a certain legal relationship exists between two or more parties:

  • one party (person or entity) may be responsible for the actions or inactions of the other party
  • that led to an injury to another person
  • even when that person or business is not directly responsible.2

2. When is a food service company liable for foodborne illness?

When a food service provider supplies food that is contaminated with bacteria, viruses, or other pathogens:

  • the company can be held responsible for
  • any illness caused and any damages that resulted
  • under Colorado's product liability laws.

2.1 What are product liability laws?

When any company manufactures and sells a defective product, it is held strictly liable for the injuries caused, even when the company or a person is not negligent.

In food poisoning cases, the injured person will have to prove four things:

  • the company sold or distributed a contaminated or defective food product;
  • the product was contaminated when it left the company's control (not contaminated after);
  • the injured person used the product in the way it was intended or was foreseeable; and
  • the injured person suffered some type of harm as a result.3

2.2 What is a food service company?

Food service companies provide ingredients and food to restaurants. This includes companies such as:

  • Gordon Food Service;
  • AVI Food Systems;
  • Sysco; and
  • Aramark.

This is far from an exhaustive list, and many other companies exist that engage in this business.

3. Can I sue the grocery store for selling expired food that made me sick?

If a grocery store sells expired food, but the food does not cause illness, a personal injury lawsuit will not be successful.

However, if the expired food caused a person to become ill, the grocery store can be liable for any injuries that resulted. Depending on the facts of the case, the grocery store may be liable under:

  • a negligence standard;
  • a products liability standard; or
  • both.

Most dates posted on grocery store items are "sell by" dates, not true expiration dates.

Example: Milk is almost always marked with a "sell by" date, but not necessarily an "expiration" date. Janet buys milk that had a sell by date from 2 days ago. She takes it home and gets sick. Just because the milk was past the sell by date, does not automatically mean it was expired. She will have to prove the milk is what caused her illness.

4. How do I prove my food poisoning case?

Proving a food poisoning case can be difficult at times, but it is not impossible. The important first step is to determine where the contamination came from.

Some infections can take days to incubate, making it difficult to pinpoint exactly when and where a person picked up a foodborne illness. The best way to show that a particular restaurant or food service provider was the cause of a particular illness is to show that it also caused illnesses to others.

4.1 What evidence will be used in my case?

Various evidence will be used in presenting and proving your personal injury case, including but not limited to:

  • doctor notes and reports from any medical visits;
  • expert medical testimony;
  • virology and bacteriology experts;
  • testimony of the injured person (the plaintiff);
  • testimony of others who also became ill as a result.

5. What are common foodborne illnesses?

Many types of bacteria and viruses can make people sick. Common illness-causing pathogens include:

  • Compylobacter;
  • E. coli (Escherichia coli);
  • Clostridium perfringens;
  • Botulism (Clostridum botulinum);
  • Norovirus;
  • Salmonellosis (Salmonella);
  • Shigella;
  • Staphylococcus aureus (Staph);
  • Toxoplasmosis; and
  • Hepatitis A.4

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

A person can recover both economic and non-economic damages as part of his or her personal injury lawsuit.

Economic (pecuniary) damages include:

These damages are more easily identifiable through documentary evidence and usually have a defined value.

Non-economic damages are those not typical "out-of-pocket" expenses. These losses are more subjective and include:

 

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Call us for help...

For questions about food poisoning lawsuits in Colorado or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us. For cases in California or Nevada, please see our pages on food poisoning lawsuits in California and lawsuits for food poisoning in Las Vegas Nevada.

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.


Legal References:

  1. Lopez v. Trujillo, 399 P.3d 750 (Ct. App. Div. 1 2016). (To prove a prima facie negligence claim, the plaintiff must prove: (1) the defendant owed a legal duty of care; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant's breach caused that injury. citing Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004). Of these elements, duty is the threshold element.)
  2. 7 COPRAC 14:4 (Employees, servants, and agents--Course and scope of employment).
  3. Walker v. Ford Motor Company, 406 P.3d 845 (2017).
  4. Centers for Disease Control and Prevention. Food Safety. A-Z Index for Foodborne Illness.

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