You came down with a case of food poisoning after eating at your favorite restaurant. Or you found what looked like a piece of plastic in a packaged salad you bought at the grocery store. Food poisoning or food contamination (“bad food”) cases like these might look simple, but they’re often quite difficult to prove.
In this article, you’ll learn:
- the difference between food poisoning and food contamination claims, and the issues you’ll face with each
- how to preserve the evidence you’ll need to prove your bad food claim, and
- the basics of a bad food lawsuit, including the claims you can bring and the kinds of compensation ("damages") you can collect if you’re successful.
Food Poisoning vs. Food Contamination
Food contamination and food poisoning sound much the same, but the only similarity is that they both involve food or drink. Here’s how they differ.
Food Poisoning
Food poisoning means sickness caused by eating food that contains an illness-causing bacteria, virus, or parasite. You can get sick when your food:
- isn’t cooked long enough
- comes into contact with other tainted food, infected food handlers, or infected equipment, or
- isn’t correctly refrigerated.
In most cases, food poisoning causes mild gastrointestinal symptoms. Severe cases can lead to permanent injuries or death.
Foods Most Likely to Cause Food Poisoning
The foods most likely to cause food poisoning are:
- sprouts
- raw milk
- eggs
- flour
- bagged lettuce
- pre-cut melon
- oysters
- raw milk cheeses
- ground beef, and
- hot dogs.
Most Common Causes of Food Poisoning
In most mild food poisoning cases, the culprit is one of these:
|
Pathogen |
From |
Symptoms In |
Lasts |
|
Tainted foods, drinks |
12-48 hours |
1-3 days |
|
|
Undercooked eggs, meat; unpasteurized milk, cheese; some fruits and vegetables |
1-3 days |
Up to 7 days |
|
|
Beef, poultry, gravy |
6-24 hours |
About 2 days |
|
|
Undercooked poultry, unpasteurized milk, contaminated water |
2-5 days |
2-10 days |
More serious cases often are caused by some strains of e.coli bacterias or listeria bacteria. Botulism, usually associated with canned foods and caused by the clostridium botulinum bacteria, can be fatal.
Food Poisoning Outbreaks
A foodborne outbreak happens when two or more people get sick from the same food or drink. Most food poisoning cases are not related to an outbreak. The United States Centers for Disease Control keeps a list of multistate food outbreak notices.
Food Contamination
Food contamination usually refers to food containing a foreign object (rocks, metal, or plastic, for example). Contamination can happen at any point in the supply chain. Producers, processors, transporters, wholesalers, and retailers all might share blame. Depending on the foreign object, contaminated food can injure the teeth, gums, mouth, or digestive tract.
What to Do If You Think You Have a Food Poisoning or Food Contamination Claim
If you think you’ve eaten bad food, the first thing you should do is get medical care. As soon as you’re able, begin gathering and preserving the evidence you’ll need to bring a claim. You should:
- preserve the bad food, if possible
- talk to your doctor and collect medical evidence, and
- keep a journal to record what happened.
Preserve the Food
In any kind of bad food case, you’ll want to preserve the food in as close to the same condition as it was when you last ate it. Cover the food and store it in your freezer.
In a Food Poisoning Case
In most cases, you won’t have symptoms until several hours after eating. Unless you happened to save some leftovers from your meal, the food is long gone. If you don’t have any of the food left—and the odds are you won’t—proving a food poisoning case will be difficult. You should meet with an experienced lawyer to explore your options.
If you did keep some of the food, contact your local health department to find out about having it tested for pathogens. In addition, ask about reporting and whether your case might be part of a wider outbreak.
In a Food Contamination Case
If you found a foreign object in your food, take pictures of the food. Make sure to photograph the size and location of the object. If you’re with others, let them see (but don’t let them touch) the foreign object. If you ordered the food in a restaurant, don’t let the waitstaff take the food away and remove the foreign object.
Contact your local health department to find out about reporting and to see if there have been other complaints about the food or the retailer.
Medical Evidence
Be sure to tell your doctor when you ate the bad food and when your symptoms began to appear. In a food poisoning case, ask the doctor about testing. Proving that a particular food made you sick will be difficult unless you can show that the pathogens infecting you and those in the food you ate were the same.
Ask if the doctor is aware of any other foodborne illness or injury cases from the same food or the same retailer. Once your treatment is complete, order your medical records and bills.
Keep a Journal
At the first symptoms of illness or injury, start taking notes. Write down what you ate, when you ate it, when the symptoms started, and what those symptoms were. Keep a record of all symptoms throughout your illness or injury, the treatment you received, and your recovery.
Note that if your case ends up in a lawsuit filed in court, the other side will probably be able to get a copy of any notes you’ve taken. Make sure that what you write is true and factual—don’t exaggerate your symptoms or use wild, overblown rhetoric.
Food Poisoning and Food Contamination Lawsuits
At first glance, a bad food lawsuit might seem like a slam dunk case. As we’ve discussed, though, proving a bad food case is no simple matter.
Can You Sue for Food Poisoning or Contaminated Food?
The short answer is: Yes, you can sue if you ate bad food and got injured or sick as a result. A bad food claim is, in many ways, just like any other personal injury case. You’ve got to sue the correct parties (“defendants”), show that at least one defendant is liable for your injuries, and prove the injuries and damages you’ve suffered. Let’s look at these elements in closer detail.
Who Do You Sue for Food Poisoning or Contaminated Food?
In a bad food lawsuit, the defendants could be any business in the chain of production and distribution. Possible defendants include:
- the company that grew or produced the food
- the company that prepared the food for sale (by cooking, canning, bagging, or freezing it, for example)
- the wholesaler
- the transporter
- the supermarket, restaurant, or another retailer that sold you the food.
Any of these companies might have infected or contaminated the food, or failed to notice that the food was infected or contaminated so that it might be removed from distribution.
Kinds of Food Poisoning or Contaminated Food Claims
A food poisoning or contaminated food claim is what lawyers call a product liability case. When you bring a bad food product liability lawsuit, you can make three kinds of claims:
- a negligence claim
- a strict liability claim, and
- a breach of warranty claim.
Negligence Claims
In a negligence claim, the plaintiff (the party who files the lawsuit) argues that a defendant had a legal duty to act with reasonable care, but the defendant “breached,” or failed to meet, that legal duty. The plaintiff also claims that the defendant’s negligence caused the plaintiff to suffer injuries and damages.
For example, a restaurant has a duty to refrigerate perishable foods and to throw away foods that sit unrefrigerated for too long. If the restaurant serves food that hasn’t been properly refrigerated, it breaches that duty and can be held responsible for resulting foodborne illnesses.
A food processing facility has a legal duty to maintain food handling equipment so that it doesn’t contaminate food with foreign objects. If the company neglects this duty and metal shavings end up in packaged food products, the company will be liable for injuries suffered by people who eat those packaged foods.
Strict Liability Claims
Strict liability claims don’t require a plaintiff to prove that the defendant was negligent. In a bad food strict liability case, the plaintiff must show that:
- when it was produced or sold, the food was “defective” (meaning it was improperly made, handled, or processed or lacked necessary warnings) and because of the defect, it was unreasonably dangerous
- the seller intended that the food would reach the customer without being changed, and
- the plaintiff was injured by the food.
“Strict” liability doesn’t mean “automatic” liability. A quick look at the elements of a strict liability claim reveals lots of room for disputes. When did rocks find their way into the mass-produced potato salad? At what point in the chain of distribution did the lettuce get infected with salmonella? Did a chicken farmer intend that the chickens sold to a processing facility would reach consumers in the same condition?
In addition, there are defenses to product liability claims. The seller might argue, for instance, that you picked up a salmonella infection by eating food made by someone else. Every state also has a time deadline, called a statute of limitations, for filing product liability claims. If you don’t file your lawsuit before the deadline expires, the court will dismiss your case.
Breach of Warranty
“Warranty” is just a legal term for a promise or guarantee. When the seller sells a product that doesn’t live up to the terms of a warranty, the seller “breaches” the warranty. If the plaintiff proves damages resulting from the breach, the seller is liable.
There are two kinds of warranties:
- Express warranties are those a seller makes to the buyer, either orally or in writing. For example, a product’s packaging might say “Triple-Washed for Your Safety!” That’s an express promise, or warranty, regarding the processing of the food.
- Implied warranties are warranties that the law automatically makes a part of a product sale even if the seller doesn’t make them expressly. For instance, the law implies that food will be fit for its intended purpose—human consumption. Food that’s tainted with harmful bacteria isn’t fit for consumption, meaning that the seller has breached this implied warranty.
Warranty law varies from one state to another. You’ll need to check your state law to find out what kinds of warranty claims are available to you in a bad food product liability case.
The damages you can collect for a breach of warranty claim likely will be less generous than the damages you might be awarded for negligence or strict liability claims.
Can I File a Class Action Lawsuit?
Because most food poisoning or food contamination cases are isolated events, a class action lawsuit won’t be an option. A class action case might be possible if there’s a foodborne outbreak involving several dozen or hundreds of potential claims. But even then, the facts might not be a good fit.
A class action lawsuit isn’t something you want to do on your own. You’ll need a lawyer with lots of experience handling complex product liability cases to take the lead.
What Damages Can I Sue For?
In most bad food product liability cases, you can sue for two kinds of damages. First, you can ask to be awarded your “economic” damages, sometimes called “special” damages. These damages compensate you for out-of-pocket expenses like medical bills, lost wages, and pharmacy charges.
Second, you’re also entitled to payment for your “noneconomic” (sometimes called “general”) damages. This category includes damages for more “intangible” losses such as pain and suffering and emotional distress.
Will My Case Settle?
Most personal injury cases settle without a trial. Whether a particular case will settle, and if so for how much, ultimately depends on the strength of the case. If the insurance company thinks you’ve got a weak case (for example, maybe you’ve got problems proving what made you sick), it might not offer a settlement. In some cases, the insurance company might offer a nuisance settlement just to make the claim go away.
No two claims are alike, and there’s no such thing as a “typical” settlement. The fact that another bad food case settled for a particular amount tells you very little, if anything, about the value of your claim. The best way to find out how much your case might be worth is to consult with an experienced lawyer in your area.
Does It Make Sense to File a Food Poisoning or Food Contamination Claim?
The answer to this question depends on at least a couple of things. First, can you prove your claim? If you weren’t able to save some of the food that gave you food poisoning, proving your case will be a challenge. Likewise, if you didn’t get to the doctor for testing, proving a food poisoning claim will be an uphill battle.
Second, your damages—or more accurately, lack of damages—can be a problem. In any personal injury case, including a bad food case, the nature and extent of your injuries will be the most important factor in deciding how much your claim is worth.
Fortunately, most bad food cases don’t result in serious illness or injury. You spend a day or two in the bathroom and you feel lousy, but that’s it. If your illness or injury was minor and your damages are small, your claim doesn’t have much value.
In 2001, the United States Department of Agriculture published the results of a study of 175 cases involving claims of foodborne illness. The cases were resolved by jury trial or settlement between 1988 and 1997.
Of the 175 cases, less than one-third—31.4%—ended in payment of any compensation at all to the plaintiff (so nearly 70 percent of plaintiffs walked away with nothing). For those that did get compensation, the median payment (meaning half of all payments were larger and half were smaller), in 1998 dollars, was $25,560. That equals a payment in 2022 dollars of $46,775.
A summary of the study conclusions confirms what we’ve talked about above:
- bad food cases are hard to prove, for a variety of reasons
- in cases that go to trial, most plaintiffs lose, and
- case value depends on the severity of the plaintiff’s illness.
When Should You Hire a Lawyer?
A bad food claim isn’t like a car accident or slip and fall case. In a food poisoning case, showing that your illness was caused by eating a specific food can be difficult. Insurance adjusters and insurance company lawyers are good at beating these claims. They’ll be ready to meet yours head-on.
If you think you’ve got a food poisoning or food contamination case, your best chance of success will come from hiring a lawyer with expertise in product liability cases, and preferably with lots of experience in bad food cases.