Food Poisoning Las Vegas - How to Prove it and File a Lawsuit

Updated

"Food Poisoning in Las Vegas — 5 Parties You Can Sue

Top Las Vegas personal injury attorney discusses who may be liable for food poisoning in Nevada lawsuits. More info at https://www.shouselaw.com/nevada/perso…


Food poisoning
lawsuits in Las Vegas Nevada are when victims sue restaurants, grocers, or manufacturers for serving them contaminated food that caused their illness, such as salmonella, e. coli, or norovirus. Three common legal claims for food poisoning are products liabilitynegligence and negligence per se. The statute of limitations to bring a claim is two (2) years after the sickness.

In this article, our Las Vegas personal injury attorneys discuss:

woman vomiting in sink after suffering food poisoning in Las Vegas
Most foodborne illness cases settle with no trial.

1. What are the grounds for food poisoning lawsuits in Nevada?

There are various legal claims that food poisoning victims ("plaintiffs") may be able to bring against the at-fault parties ("defendants"). These include:

  1. Strict products liability;
  2. Negligence;
  3. Negligence per se; and/or
  4. Wrongful death (if the victim dies)

1.1. Strict products liability

There are five elements a plaintiff needs to prove in a products liability claim in Nevada:

  1. The product was defective as the result of a design, manufacturing, or warning problem;
  2. The defect existed when the product left the possession of the defendant;
  3. The product was used in a manner which was reasonably foreseeable by the defendant;
  4. The defect was a cause of the plaintiff's injuries; and
  5. The injuries resulted in damages.1

Producers must make food safe for consumption. If the food has problems that sicken others, then these producers are strictly liable to the victims for making defective products.

1.2. Negligence

There are four elements a plaintiff needs to prove in a negligence claim in Nevada:

  1. The defendant owed the plaintiff a duty of care;
  2. The defendant breached this duty;
  3. This breach proximately caused the plaintiff's injury; and
  4. This injury resulted in damages.2

Companies who grow, make, ship, or serve foodstuffs owe the public a duty of care to keep the food safe. If these companies cut corners — which then causes consumers to become ill from the contaminated food — these companies are negligent.

1.3. Negligence per se

There are five elements a plaintiff needs to prove in a negligence per se claim in Nevada:

  1. The defendant had the duty to follow a certain law;
  2. The plaintiff is one of the people that law was designed to protect;
  3. The defendant violated this law;
  4. The defendant's violation proximately caused the plaintiff's injuries; and
  5. The injuries resulted in damages.3

Food storage and preparation is one of the most heavily regulated activities in the U.S. by the FDA (Food and Drug Administration) and in Las Vegas by the Southern Nevada Health District (SNHD). If companies violate these safety laws — which then causes consumers to become ill from the contaminated food — these companies are negligent per se.

1.4. Wrongful death

There are four elements the plaintiff would need to prove in a wrongful death claim in Nevada:

  1. The victim died;
  2. This death was caused by the defendant's wrongful act or negligence;
  3. The plaintiff is an heir or personal representative of the victim; and
  4. The plaintiff suffered damages for monetary injury as a result of the death

The victim's family and/or estate can bring wrongful death claims in Nevada.4

2. Whom can I bring a lawsuit against?

It depends on the circumstances of the food poisoning case. It may be possible to sue the following parties:

  • The company that produced the contaminated foodstuffs;
  • The company that distributed the contaminated foodstuffs;
  • The retailer that stocked the contaminated foodstuffs; and/or
  • The restaurant and/or hotel that served the contaminated foodstuffs

It may also be possible to sue the particular factory workers, cooks, and waiters whose actions caused the foodstuffs to become contaminated. But the companies they work for have much deeper pockets. So they can offer a much larger settlement.

person clutching stomach with stomach ache
There are several possible culprits in foodborne illness cases. These include the companies that manufactured, shipped, or served the food.

3. What damages can I recover?

When people are poisoned by their food due to negligence, Nevada state law allows them to collect the full amount of their damages. This holds true even if an immune condition or age caused them to become more sick than the average person.

Personal injury attorneys would fight for a settlement that covers all of the following compensatory damages:

Should the case go to trial, the personal injury attorney would also fight for punitive damages. These are meant to punish defendants for their behavior. And punitive damages can be much larger than compensatory damages.5

4. How long do I have to file a claim?

The statute of limitations to bring a Nevada civil lawsuit for contaminated food is usually two (2) years after the victim gets sick. But this time period may be longer depending on the circumstances of the case and the particular claims involved.6

Either way, it is important for victims to consult with a Nevada personal injury attorney as soon as possible. The quicker an attorney gets on the case, the better chance the attorney has of compiling important evidence, including:

  • Video surveillance footage
  • Eyewitness testimony
  • Inventory, restaurant, and shipping records
  • Medical records

The more time goes by, the more memories fade and the more evidence disappears.

5. How do I prove a food poisoning claim?

First, food poisoning victims should seek medical help. Doctors can diagnose what virus or bacteria caused the sickness. And these medical records may serve as important evidence if the victim sues.

Second, victims should file a foodborne illness complaint with the local health authority. In Las Vegas, that would be the SNHD. They may then launch an investigation of the restaurant or venue. And if other victims file similar complaints, their claims become stronger.

Finally, victims should compile all relevant evidence. This may include:

  • Leftovers of the contaminated meal, which can then be tested;
  • Receipts for the food, such as restaurant bills or supermarket receipts;
  • Photographs of the meal or buffet, such as those taken for Instagram;
  • Contact information of eyewitnesses who saw the victim consume the food; and/or
  • Medical records showing that the victim suffered food poisoning

In some situations — such as widespread food contamination leading to a product recall — it can be relatively easy for victims to show where contaminated foodstuffs came from. In more isolated circumstances, it can sometimes be difficult for people to prove that they were made sick by a specific food or establishment.

Generally, victims do not have a case if they stored the food improperly. For example, if a person buys milk and leaves it on the counter, the grocer is not liable for the spoiled milk causing food poisoning. It was the customer's fault.

But victims should have a case for illnesses caused by manufacturing and preparation problems. So if grocer sells spoiled milk, the grocer could be liable for customers causing food poisoning. The customer did not cause the spoiling.

6. What causes foodborne illness?

Food contamination can happen at several different points. From the farm to the table.

Some food contamination occurs at the harvest of the food. Perhaps the person picking produce did not wash hands after using the bathroom. This could cause sickness. Especially if the produce was rinsed poorly or not at all.

Other foodborne illness occurs from contamination during production or processing. This could include bad butchering of meat. Or a production line introducing a harmful microorganism to flour.

Food contamination can also happen during preparation or serving. This usually results from cross-contamination from unwashed hands.

Also, food can become contaminated through poor storage. Unrefrigerated food invites harmful microbes to multiply.

6.1. Types of food poisoning

A variety of microorganisms can cause foodborne illness. Common types of food poisoning leading to hospitalization in the U.S. include:

  • Salmonella poisoning, which can last up to a week. Salmonella is the most fatal food poisoning in the U.S. Infections usually begin 12 to 72 hours after exposure to contaminated food.

  • E. Coli poisoning usually comes from eating undercooked meat. Healthy people can often fight off e. coli poisoning at home. But young people and the elderly may die from it.

  • Norovirus typically contaminates food from sick food service workers. It can cause severe diarrhea and dehydration.

Food poisoning affects different people in different ways. The most vulnerable are the young, elderly, and immuno-compromised.

6.2. Statistics

Every year, one in six Americans gets food poisoning. Usually the effects of food poisoning are minor. And most victims require no hospitalization.

But ingested contaminated foodstuffs can cause medical emergencies. The U.S. Centers for Disease Control and Prevention (CDC) estimate that foodborne diseases cause approximately 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths in the U.S. each year.7

7. High-profile food poisoning cases in Las Vegas

Perhaps the most well-known case involves the restaurant Firefly Tapas Kitchen & Bar. More than 300 people sued the establishment for giving them salmonella poisoning in April and May of 2013. Victims suffered fevers and diarrhea.

The restaurant relied on mediation to broker settlements. It is reported that the total settlements exceeded the restaurant's liability insurance cap of $3 million through Farmers. But the exact figures are protected under nondisclosure agreements.

Ultimately, the SNHD traced the source to a contaminated sample of chorizo. The original Firefly location where the outbreak occurred has since closed.8

Another infamous salmonella outbreak occurred over Thanksgiving in 1997 at Binion's Coffee Shop.9 More than three dozen people claimed they got sick after eating there. More recently in 2019, Cafe No Fur was investigated for allegedly causing a foodborne illness.10

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Call a Nevada personal injury attorney...

Sickened with food poisoning in Nevada? You may have legal recourse. Our Las Vegas personal injury attorneys can help.

We are often able to achieve a large settlement to cover all your expenses and more without a trial. And you pay us nothing unless we win your case. So it is risk-free to you.

Las Vegas Defense Group offers FREE consultations. Call 702-333-3673. We are available 24/7.

Sickened in California? See our article on suing for poisoning from food in California.

Sickened in Colorado? See our article on filing a food poisoning lawsuit in Colorado.


Legal References

  1. Valentine v. Pioneer Chlor Alkali, 109 Nev. 1107, 864 P.2d 295, 297 (1993).
  2. See, e.g. Scialabba v. Brandise Const. Co.,112 Nev. 965, 921 P.2d 928 (1996).
  3. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004).
  4. NRS 41.085.
  5. NRS 42.005.
  6. NRS 11.190.
  7. Paul S. Mead, Laurence Slutsker, Vance Dietz, Linda F. McCaig, Joseph S. Bresee, Craig Shapiro, Patricia M. Griffin, and Robert V. Tauxe, Food-Related Illness and Death in the United States, Volume 5, Number 5—October 1999.
  8. Ana Ley, "A year after massive salmonella outbreak, legal cloud still lingers over Firefly", Las Vegas Sun (June 14, 2014).
  9. Id.
  10. Darcy Spears, "Food poisoning complaint lands Cafe No Fur on Dirty Dining", KTNV-13 ABC (December 4, 2019).

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