Wednesday 03 September 2014

Allergies

Food Allergy Liability

Food allergy injuries and deaths are on the rise. Reading the headlines from newspapers and the updates from the FDA sheds light on the increasing prevalence of food allergy injuries. Unfortunately, the cases often involve children and too often involve a fatal allergic reaction. The responsibility of avoiding these accidents is shared between consumers and restaurants. Consumers must ensure they inquire and warn restaurant staff about any allergies and food prepares must act diligently to avoid contamination. Sometimes this balance of warning and responding fails. That was the case in Chicago where a 13year old girl experienced a fatal reaction to peanuts used in Chinese food. The food was ordered by her school, which expressed the need to avoid peanuts due to allergic reactions. The question raised in a case like the one in Chicago is how is a restaurant liable for food allergies?

The best claim in most states lies in negligence. To succeed on a negligence theory in a lawsuit, the victim will have to establish that the restaurant did not use ordinary and reasonable care in preparing the food, and as a result, the food became contaminated. In a case where the restaurant has been warned about a potential allergy what is reasonable will demand more scrutiny. For example, did the restaurant modify recipes known to contain peanuts? Did it separate utensils that were in contact with peanuts?

In states that have adopted strict product liability proving negligence can be avoided. Strict liability, however, often only applies to activities that are inherently dangerous. Keeping peanuts does not fall in that category. UnderĀ  a strict liability theory a patron does not have to show any negligence on the part of the restaurant- the very fact that the customer ate contaminated food and fell ill is sufficient for liability. Whether it is wise policy to add food allergies to state strict liability statutes is debatable. Given the growing prevalence of food allergies in children the debate is worth engaging in.

Restaurants should be aware of the law but focus on safe food practices. For more on peanut allergy safety click here.

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