Food allergies are difficult no matter how you look at it. You have to be more cautious about what you eat down to the minutia. No matter how cautious you are, you also have to put a certain degree of faith in those around you to not serve you something you are allergic to once you have voiced your allergy. But what happens when you do suffer an allergic reaction after eating at a restaurant? Can you sue a restaurant for an allergic reaction?
Can you Sue a Restaurant for an Allergic Reaction?
Like most personal injury claims, claiming that you suffered an allergic reaction after eating at a restaurant is not enough to warrant a lawsuit. You must prove that someone else’s negligence was the cause of your reaction, such as:
- Serving you the wrong dish
- Preparing food with an allergen despite being alerted to an allergy
- A server failing to inform the chef
- A restaurant failing to provide allergen warnings
Any business, including restaurants, food service companies, hospitals, or nursing homes, have a duty to take reasonable steps to warn consumers, inform the chef when alerted, and prevent aggravation of allergies among consumers.
Considerations for Consumers
Before filing that allergy-related lawsuit, consumers should consider the following:
- Failure to Warn – The Food Allergen and Consumer Protection Act of 2004 requires that major food allergens be clearly disclosed on product packaging and labels. More specific to restaurants, some states require restaurants to include allergen warnings on menus. Other states place the burden of informing the chef of any allergies at the table squarely on the shoulders of the consumer.
- Negligence – If your restaurant visit was in one of the states that requires restaurants to warn of allergens and they failed to do so, then you may have a case for negligence. For example, if you have a nut allergy, and neither the server or the menu indicated that there were nuts in a dessert, then they may have breached their duty to warn you and prevent possible harm from occurring. In states where the responsibility is on the consumer, then you may also be found to be partially at fault if you did not mention your allergy before ordering.
Ultimately, the best way to determine if you can sue a restaurant for an allergic reaction is to contact a personal injury attorney to discuss your individual case.
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