Who Is Liable for Severe Food Allergy Illness?
Gregg Hollander | November 23, 2016 | Personal Injury
A diner at a restaurant in Texas seafood restaurant reportedly became seriously ill after consuming shellfish. Now, in a personal injury lawsuit filed against the restaurant corporation, he alleges that he ordered a dish of fried oysters and crawfish, making explicit instructions to the waiter to make sure there was no shrimp or shrimp residue on the plate. But allegedly, the waiter failed to relay that message to the kitchen staff.
The waiter returned to the table and assured the patron there was no shrimp in the food on his plate, according to the SE Texas Record. However, soon after the plaintiff began eating, the plaintiff began to suffer a severe allergic reaction. An ambulance had to be called and the man was whisked to a local emergency room. It was his wife who reportedly learned that their server that night had forgotten to report her husband’s shrimp allergy to the kitchen.
Now, that man has filed a personal injury lawsuit, seeking unspecified monetary damages, likely for medical expenses and lost wages (if he was forced to take time off work).
All sufferers of serious food allergies know how incredibly difficult it can be to eat away from home. One has to maintain constant vigilance, and also trust that the person preparing the food will be just as vigilant. There are constantly questions about whether a carelessly-prepared meal or dessert could land you in the hospital.
Earlier this year, the family of a 5-year-old girl in Massachusetts filed a lawsuit on her behalf after the girl’s mother ordered her a grilled cheese sandwich from a chain sandwich shop – only to find out after the girl started eating that there was a large dollop of peanut butter inside. (Investigators still aren’t sure why this was.) The girl had to be rushed to the hospital, where she was given a shot of epinephrine and forced to stay overnight. The girl’s father said after filing the complaint that this may have been a language issue.
The restaurant does issue a disclaimer on its website indicating it can’t guarantee that items on the menu will be completely free of allergens. However, an attorney representing the family notes that the volume of peanut butter on the sandwich suggests this was not merely an issue of cross-contamination.
In most of these cases, a primary issue is disclosure. That is, as a customer with a serious allergy, you have a duty to inform the waiter or cook of that if you are to have any reasonable expectation that ordinary precautions will be made in food preparation. Patrons do have the right to request substitutions, but restaurants don’t have to acquiesce to those requests.
Food preparation is generally held to the standard of what is “reasonable and ordinary.” That means they do not have to go out of their way to accommodate someone with allergies. However, if the restaurant is notified that a customer has a major food allergy and they disregard this information, they may be held liable like in this case regarding Chipotle.
If you fall ill due to suffering a severe allergic reaction at a restaurant, you may have grounds for a lawsuit, but the case will need to be carefully considered by an experienced injury lawyer.
If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.
Diner alleges Landry’s waiter failed to report shellfish allergy, Nov. 4, 2016, By John Suayan, SETexasRecord.com