restaurant food
There are very few of us who didn’t hear about the Blue Bell Ice Cream recall in 2015.  According to reports, ten people were affected by the Listeria outbreak in four states.  Three people in Kansas actually died from this serious foodborne illness.  As a result, the Food and Drug Administration (FDA) inspected Blue Bell’s production facilities and found serious food safety violations.  If you believe you have been exposed to a foodborne illness or some other form of contaminated food, contact your personal injury lawyer right away.

Foodborne illnesses are very common in the United States

The CDC has reported that roughly 76 million people in the United States suffer from foodborne illnesses each year, with 325,000 resulting in hospitalization and more than 5,000 resulting in death.  There are a numerous foodborne microbial pathogens known to cause illness in humans. The most common pathogens are E. coli, listeria, salmonella and hepatitis A.

Recent outbreak of Salmonella

Just as recently as November, 2015, an outbreak of a strain of salmonella was reported in 38 states, including Arkansas (13 cases) and Missouri (14 cases).  The salmonella was found in cucumbers sold by Andrew & Williamson Fresh Produce, under the “Limited Edition” brand label in August and September 2015.  The product was officially recalled on September 4, 2015.  However, approximately 838 people had already been infected.

Personal injury lawyer can bring claims for foodborne illnesses

Individuals who are afflicted with foodborne illnesses can bring a legal action against one of several entities, including the food manufacturers, retailers, suppliers and/or restaurants.  Your personal injury lawyer can tell you that the likelihood of success is not that high in these types of cases.  According to a study conducted by the U.S. Department of Agriculture, only about 30 percent of foodborne illness lawsuits result in some form of compensation to the plaintiff.  Even in those cases, the awards were not really substantial – somewhere between $25,000 and $133,000.

Theories of Liability for Food Poisoning

Each personal injury case based on a claim of food poisoning is different, however, most of them are pursued under a theory of “product liability.” That basically means that the contaminated food is a defective product sold to a consumer who is subsequently injured by the defective food.  As your personal injury lawyer can explain, this theory of liability is known as strict liability.

Manufacturing claims for foodborne illness

There can also be claims against the food manufacturer or restaurant for failing to use reasonable care in manufacturing or preparing the food.  In order to hold a food manufacturer liable for a foodborne illness, the injured person must show that: (1) the food product was defective; (2) it was used as intended; and (3) the defect caused the injury. In these types of strict liability cases, the care used in the manufacture of the food product is irrelevant in determining liability. The only issue in a food product liability case is whether the food product was defective, not the manufacturer’s conduct in somehow allowing the defect to arise. As such, no proof of negligence is required to recover damages.

Failure to warn of potential danger

Another possibility is the failure of the defendant to warn a consumer of a potentially dangerous food product.  If a manufacturer, for instance, fails to provide adequate warnings regarding potential dangers, the law considers that a product defect in strict liability cases.  A very common issue in those cases, as a personal injury lawyer will recognize, is whether the risk of the injury was obvious, as opposed to being completely unpredictable.

Violations of express or implied warranties

A final theory involves a claim that the contaminated food product violated either an express or implied warranty.  Specifically, product liability law is concerned with three types of warranties involving the product’s quality or fitness for use: express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose. Express warranties can be created through a description of the food product.  It can also be created when a salesperson states that the product is guaranteed to be free from defects.  Implied warranties are those created and imposed by law.

Specific laws regarding liability for food contamination

Some states have a specific test for determining liability in these types of cases.  For example, many states recognize the “reasonable expectation” test, which analyzes what is reasonably expected by the consumer in the food as served.  However, neither Arkansas nor Missouri has a specific test.  In Arkansas, claims regarding food contaminants are based only on negligence, requiring that the seller of food for human consumption must exercise ordinary care to see that it is reasonably fit for the purpose intended.  Missouri does not have a specific law either.
If you have questions regarding products liability, or any other personal injury concerns, contact us online or call the Cottrell Law Office at (888) 433-4861.

Author Photo

Wesley Cottrell

Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.

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