Who's Liable For An Allergic Reaction To Food?
Posted On behalf of Pfeifer Morgan & Stesiak on May 17, 2011 in Personal Liability
Food allergy sufferers understand just how difficult it is to eat away from home. You must trust the food preparer to keep the allergens away from your meal. Sometimes, eating out is like playing Russian Roulette with your allergy. Will this meal land you in the hospital, or make the Epi-Pen (that you hopefully remembered to bring with you) suddenly the most important thing you own?
Fortunately, state laws are designed to ensure that restaurants and other eateries keep your food allergies in mind during meal preparation. These regulations differ from one state to another. In Indiana, the laws are especially difficult to decipher, as there are no laws specifically spelling out liability for food allergy. The Indiana code does show one thing, however: when an injury occurs due to food allergies, someone (either the restaurant or the customer) is liable.
The liability lies in disclosure. As a customer, you must disclose your allergy to the waiter or cook in order to expect reasonable and ordinary precautions when preparing for food. In other words, you must also exercise a bit of common sense. For example, don’t order the dish tossed in cashew oil if you are allergic to cashews. You do have a right to ask for a substitution, but the restaurant has a right to deny that substitution as well. Their disclosure quotient was filled when they listed cashew oil on the menu in the dish description.
They are not liable if you go ahead and order the dish knowing that you have allergies.
Reasonable and Ordinary
Ensuring that food preparation is “reasonable and ordinary” is the only precaution that eateries must take in preparing your food. This includes using a separate set of utensils, cookware and ingredients than that used to make the regular meal. The chef does not have to break down the kitchen for a thorough cleaning (though state health codes mandate regular cleaning).
In fact, unless it is advertised that the chef will accommodate substitutions, he is under no obligation to accommodate your allergies at all.
However, the disclosure is key to the case. Customers informing the restaurant of the allergy, restaurants posting food ingredients or the staff offering substitutions are needed in order to even begin a case. In some state, you can bring action without the disclosure, but the Indiana Code on Food Labeling and Contamination requires some disclosure.
The next time you eat out, feel free to ask the wait staff about the ingredients to your order. The restaurant probably wants to avoid triggering an allergic reaction (they’re not out to get you), but remember that you have more to lose than they do, if they fail to properly notify you. Ask questions.
If you think you’ve been harmed by someone else’s negligence, contact South Bend’s experienced personal injury Lawyers.