Food poisoning victims in Nevada can bring a lawsuit when restaurants, grocers or manufacturers serve contaminated food that leads to illnesses such as salmonella, e. coli, or norovirus.
Three common legal claims for food poisoning are
The statute of limitations to bring a personal injury claim is two (2) years after the sickness.
In this article, our Nevada personal injury attorneys discuss:
- 1. What are the grounds for food poisoning lawsuits in Nevada?
- 2. Whom can I bring a lawsuit against?
- 3. What damages can I recover?
- 4. How long do I have to file a claim?
- 5. How do I prove a food poisoning claim?
- 6. What causes foodborne illness?
- 7. How do I report food poisoning in Las Vegas?
- 8. High-profile foodborne illness cases in Las Vegas
There are various legal claims that you may be able to bring against the at-fault parties (“defendants”). These include:
- Strict product liability;
- Negligence per se; and/or
- Wrongful death (if the victim dies)
1.1. Strict products liability
There are five elements you need to prove in a strict liability claim in Nevada:
- The product was defective as the result of a design, manufacturing, or warning problem;
- The defect existed when the product left the possession of the defendant;
- The product was used in a manner which was reasonably foreseeable by the defendant;
- The defect was a cause of your injuries; and
- The injuries resulted in damages.1
Producers must make food items safe for consumption. If the food has problems that sicken others, then these producers are strictly liable to you for making defective products and compromising food safety.
There are four elements you need to prove in a negligence claim in Nevada:
- The defendant owed you a duty of care;
- The defendant breached this duty;
- This breach proximately caused your injury; and
- 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 you need to prove in a negligence per se claim in Nevada:
- The defendant had the duty to follow a certain law;
- You are one of the people that the law was designed to protect;
- The defendant violated this law;
- The defendant’s violation proximately caused your injuries; and
- 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 you would need to prove in a wrongful death claim in Nevada:
- The victim died;
- This death was caused by the defendant’s wrongful act or negligence;
- You are an heir or personal representative of the victim; and
- You 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
It depends on the circumstances of the food poisoning case. In a case of food poisoning, 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 (such as grocery stores); 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.
When you are poisoned by your food due to negligence, Nevada state law allows you to collect the full amount of your damages. This holds true even if an immune condition or age caused you to become sicker than the average person.
Personal injury attorneys would fight for a settlement that covers all of the following compensatory damages:
- Medical bills (including medications to treat the food poisoning),
- Lost wages (while you were too ill to work),
- Pain and suffering, and/or
- Wrongful death damages (if the victim passed away)
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
The statute of limitations to bring a Nevada civil lawsuit for contaminated food is usually two (2) years after you get 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 to consult with a Nevada personal injury attorney as soon as possible. The quicker an attorney gets on the personal injury lawsuit, 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.
First, you should seek medical help. Doctors can diagnose what virus or bacteria caused the sickness. And these medical records may serve as important evidence if you sue.
Second, you should file a foodborne illness complaint with the local health authority. In Las Vegas, that would be the SNHD. The health department may then launch an investigation of the restaurant or venue to find the cause of food poisoning. And if other victims file similar complaints, your claims become stronger.
Finally, you 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 you consume the food; and/or
- Medical records showing that you suffered food poisoning
In some situations — such as widespread food contamination leading to a product recall — it can be relatively easy for you to show where contaminated foodstuffs came from. In more isolated circumstances, it can sometimes be difficult to prove that you were made sick by a specific food or establishment.
Generally, you do not have a case if you stored the food improperly. For example, if you buy milk and leave it on the counter, the grocer is not liable for the spoiled milk causing food poisoning. It was your fault.
Though you should have a case for illnesses caused by manufacturing and preparation problems. So if the grocer sells spoiled milk, the grocer could be liable for causing food poisoning. You did not cause the spoiling.
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 (escherichia coli) usually comes from eating undercooked meat/ground beef. Healthy people can often fight off e. coli poisoning at home. But young people and the elderly may die from it. E. coli can cause hemolytic uremic syndrome, which can lead to kidney failure.
- Norovirus typically contaminates food from sick food service workers. It can cause severe loose feces and dehydration.
- Listeria (listeria monocytogenes) can be found on decaying vegetation and in such foods as soft cheeses, hot dogs, deli meats, smoked seafood, and unpasteurized milk (raw milk), especially when left at room temperature. A listeriosis infection may cause severe gastro-intestinal issues and abdominal cramps.
- Clostridium perfringens, which can be found on raw poultry, raw meat and in gravies.
- Staphylococcus aureus (staph), which can be transferred from unwashed hands and cutting boards to food.
- Clostridium botulinum, which can be found in contaminated water.
Food poisoning affects different people in different ways, and the symptoms of food poisoning can vary. The most vulnerable people with a higher risk for severe cases are young children, pregnant women, older adults, and the immuno-compromised. Signs of dehydration caused from food poisoning can include dry mouth and loss of electrolytes, so rehydration is vital.
Food poisoning can cause gastroenteritis, marked by a high fever, terrible abdominal pain, stomach cramps, and possibly bloody diarrhea. Note that some people mistakenly believe they have food poisoning symptoms when they are in fact suffering from other ailments, such as a stomach flu.
Every year, one in six Americans gets food poisoning. Usually the effects of food poisoning are minor. Plus 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
If the contaminated food was from a restaurant, caterer or other commercial establishment in Las Vegas, fill out the Foodborne Illness Complaint Form or call the Southern Nevada Health District, Office of Epidemiology at (702) 759-1300.
If the contaminated food was in something prepackaged, contact the FDA at (510) 337-6741.
And if the contaminated food was from meat you got at a grocery store, then contact the USDA at (800) 535-4555.
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
This FDA page provides resources on food recalls, outbreak investigations, prevention tips, and reporting foodborne illnesses.
This legal site provides a good overview of the basics of food poisoning lawsuits, including how liability works and typical causes of action.
This is a news site solely focused on reporting on food safety issues, outbreaks, recalls, and policy news.
- Valentine v. Pioneer Chlor Alkali, (1993) 109 Nev. 1107, 864 P.2d 295, 297.
- See, e.g. Scialabba v. Brandise Const. Co. (1996) ,112 Nev. 965, 921 P.2d 928.
- Atkinson v. MGM Grand Hotel, Inc., (Nev. 2004) 98 P.3d 678, 680.
- NRS 41.085.
- NRS 42.005.
- NRS 11.190.
- 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.
- Ana Ley, “A year after massive salmonella outbreak, legal cloud still lingers over Firefly“, Las Vegas Sun (June 14, 2014).
- Darcy Spears, “Food poisoning complaint lands Cafe No Fur on Dirty Dining“, KTNV-13 ABC (December 4, 2019).