Can I make a claim for injury if I was food poisoned?

Can I make a claim for injury if I was food poisoned? 

By serving food, in Virginia, restaurants make a warranty to their customers that the food they serve is safe to eat.  In Bussey v. ESC Restaurants, 270 Va 531 (2005), the Virginia Supreme Court reaffirmed what a Plaintiff must prove to recover damages from food poisoning:Did a restaurants food make you sick?

(1)that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and

(2) that the unreasonably dangerous condition existed when the goods left the defendant's hands.

Of course, making a claim for personal injury and winning the claim are two very different things.  Therefore, further investigation must be made and several questions must be answered.

How do you prove that it was the restaurant food that made you, and not something else you ate?

In car accident cases, it’s pretty easy to identify the source of your injury.  If you were rear-ended, you simply look behind you, and there’s the defendant. 

When it comes to food poisoning, things can be much more complicated.  Think about how many items you eat in a day.  In fact, in the Bussey case, the Court pointed out, “cases involving food poisoning present unique circumstances because the primary source of evidence is usually consumed and transmuted in the ordinary course of its use.  As a result, most cases will necessarily rely upon circumstantial evidence.” 

Given this, if you suspect you’ve been food poisoned, you should try to recreate what you’ve eaten over the past five days to identify the source of your illness. You can do several things:

  • write down what you remember you ate for the past five days (pay specific attention to any food similar to the food that you suspect made you ill);
  • look at your receipts to see what you paid for;
  • discuss with your family, friends, co-workers, and others who were around you who can provide you more detail.

Of course, if you didn’t eat all of the particular food that you suspect made you ill, make sure to preserve it. 

You should also make a note of any discussions you’ve had with restaurant workers and managers about your illness and whether they knew the food they served was bad.  (In Bussey, the waiter acknowledged the food that made the Plaintiff sick was “bad meat.”)

Additionally, when food poisoning is suspected, restaurants are required to report claims to the Department of Health.  Therefore, you should check with them to see if any other claims were made.  

Of course, this list isn’t exhaustive, and any other evidence you have, you should preserve. 

How do you prove your particular type of illness was caused by the unsafe food? (proximate cause)

The defense will likely argue that your illness could have been caused by any one of 1000 (name the “bug” that you got sick from) - dirty door knobs, weights at the gym, your kid’s runny noses and unclean hands.  Therefore, you must also establish “proximate cause.” 

Ordinarily, the proximate cause will be proven by the doctors you saw as a result of your illness.  If you’ve called an attorney due to your food poisoning, it’s likely that you’ve been to the doctor, had tests run, possibly admitted to the hospital, and hopefully the doctor has been able to identify the specific illness you have and provide you some guidance as to whether it was related to your food consumption. 

Therefore, you doctor will become an important part of your claim.  Make sure to ask him or her for your medical records.

How much is your case worth? 

As with any civil claim, the value of food poisoning is not so easy to narrow down.  Of course, to best determine the value, you will need to collect all of your medical bills and records so that a proper assessment can be made.  You should also prepare to discuss how the illness has affected your life, the pain caused, and any future issues that will come about.

James S. Abrenio
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Focusing on criminal, traffic defense and personal injury cases