Getting Through Your Divorce and on With Your Life

Do Restaurants Have A Duty To Protect You From Food Allergens?

2 April 2015

Celina Henry

If you are included in the 15 million Americans who suffer from food allergies, you likely view meals eaten out as similar to a game of Russian roulette. If you have been made severely ill or suffered permanent injury due to the presence of an allergen in a meal you were promised was allergen-free, you may be wondering whether you have any recourse against the restaurant that served you. As the number of diagnosed food allergies continues to rise, this situation is becoming more and more common -- and sometimes ends in tragedy.

Read on to learn more about what you'll need to establish in a court of law if you choose to file a personal injury lawsuit against the restaurant (or server) that provided you with the problematic meal.

Do you have the basis for a personal injury lawsuit?

To succeed in a personal injury lawsuit, you must establish several important elements. First, you must demonstrate the defendant (restaurant) owed you a certain duty of care -- for example, serving you a non-allergenic meal after being informed of your severe or life-threatening allergy. Once this has been established, you'll then need to prove the restaurant or server neglected this duty of care and by doing so, caused you physical, emotional, or financial harm. 

Unlike criminal cases, where the evidence put forth by the prosecutor must indicate "beyond a reasonable doubt" the defendant is guilty of the crime charged, the standard of proof in a civil case is much lower. As the plaintiff, you'll only need to show "by a preponderance of the evidence" the defendant restaurant was negligent and this negligence caused injury. 

What constitutes a preponderance of the evidence in a specific case is a relatively fluid concept, but most courts have interpreted this term as meaning simply the majority of the probative evidence offered in the case. 

Does a restaurant have a duty of care to protect you from food allergies?

By far the most controversial aspect of this topic of law is the duty of care issue. Many restaurants have successfully argued they are physically and financially unable to avoid cross-contamination issues, and they cannot be held responsible for allergens inadvertently consumed by sensitive customers when efforts have been made to notify customers they run the risk of consuming peanuts, tree nuts, dairy, gluten, or other common allergens.

On the other hand, if someone requests a peanut or dairy-free meal and is assured by a server or restaurant manager the meal he or she receives will contain no allergens, the court may feel a duty of care arose from this interaction -- even if one would not have normally existed. Therefore, the odds of success on such a claim likely depend on steps the restaurant took to notify customers  allergens may be present, as well as efforts made to reassure customers no allergens existed in a particular menu item. 

Can a restaurant be held legally responsible for an error made by staff? 

In many cases, your legal argument may stem from the reassurance of a staff member that your meal would be allergen-free. However, must the restaurant assume legal and financial responsibility for this mistake?  

If the employee's error was due to inadequate or nonexistent training, the answer is yes. You or your personal injury attorney may want to investigate whether the restaurant trained its employees to respond to customers with specific dietary needs and restrictions, and if so, whether the employee at fault had undergone this training. If allergen training was minimal or nonexistent, this may bolster your argument that the restaurant was negligent in its duty of care.

If the employee was well-trained in accommodating customers with specific requests, but made a mistake or simply neglected to ensure the meal was allergen-free, your action may be against the employee individually, rather than the restaurant.

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