Types of Liability and Injury Lawsuits for Food Poisoning

Learn about the different legal theories under which a business could be held liable (and sued) for food poisoning.

Food poisoning cases are pretty common, and some even make headlines. Potential viruses and bacteria that can cause food poisoning include E. Coli, Hepatitis, Botulism, Norovirus, Listeria, and Shigella. When a restaurant, grocery store, or other food distributor is to blame for food poisoning, customers may be within their rights to sue the business under common legal theories like negligence or strict products liability. This article looks at the legal options of customers who have been stricken by food poisoning.

Potential Causes of Action For Food Related Illness

When it comes to food poisoning, the business selling the food may be liable for failure to exercise reasonable care in storing and preparing food, or may be found strictly liable for a defective food product. Additionally, in certain cases, it may have breached a warranty.


Under general negligence principles, a business has a duty to exercise reasonable care. In the restaurant context, "reasonable care" means that the restaurant has a duty to maintain a safe environment, produce safe products (i.e. meals) and eliminate unreasonable dangers. A negligence claim beings to take shape once the restaurant breaches its duty to customers. For example, a restaurant breaches its duty by maintaining a dirty kitchen and storing food in unsanitary ways.

In a negligence case against a store or restaurant for food poisoning, a plaintiff (the person who is suing) must prove that the business caused the food poisoning. In other words, it must be proved that the business's unsafe food caused the plaintiff's illness. Proving causation is often difficult in these cases. As an additional hurdle for a plaintiff in a food poisoning case, he or she must prove that it was the business's food and not other food that caused the illness. The plaintiff may have eaten breakfast at home and then ate at a restaurant for lunch and became ill. The source must be isolated and identified. A doctor must be consulted immediately to determine the illness and identify of the contaminated food.

Finally, a plaintiff must prove harm or injury. Simply becoming sick will satisfy this requirement. However, your degree of sickness may determine whether it is worthwhile to file an action in court against the store or restaurant.

Strict Products Liability

Most states have some form of strict products liability. In contaminated food cases, a plaintiff must show that the food served by the restaurant or bought at the store was defective and unreasonably dangerous. It must also be shown that the defective and unreasonably dangerous food caused the illness. There is no requirement of showing lack of reasonable care (this is the main way that strict products liability differs from negligence). A business can be liable under strict products liability for selling the contaminated food. In fact, everyone in the chain of distribution can be sued, including the food distributor, retailer, wholesaler, and manufacturer.

Breach of Warranty

Under commercial laws, most states have implied warranties. There is generally an implied warranty that a product will conform to an ordinary buyer's expectations and follow minimal quality specifications. Where contaminated food causes food poisoning, the injured consumer can claim that the food did not conform to the ordinary buyer's expectation of non-contaminated food. Similar to strict products liability, an implied warranty will follow the food through the chain of distribution unless it is expressly restricted or voided by contract.

Damages from Food Poisoning

As discussed above, when food poisoning causes illness and injuries, legally recoverable damages in a personal injury case can include:

  • medical bills
  • lost income
  • out-of-pocket expenses
  • pain and suffering, and
  • emotional distress.

In rare and extreme cases, death can result from food poisoning. The loved ones of the deceased may be able to file a wrongful death action against the liable business.

When to Take Legal Action for Food Poisoning

As mentioned above, food poisoning cases are pretty common, and businesses selling tainted food are often the culprit. But that doesn't mean you should call an attorney just because you're not feeling well after last night's dinner at the new Indian place around the corner. On the other hand, if you've been stuck with extensive medical bills and related costs due to a particularly acute bout with food poisoning, pursuing legal action may be a viable option.

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