Product Liability

You Found a What in Your Food?! Liability for Food Contamination

By David Berg, Attorney
Finding something unexpected in your food doesn't necessarily mean you've got a viable legal claim -- it takes more than just being "grossed out."

You found something in your food that shouldn’t have been there, but does that mean you have some type of valid legal claim? If so, against whom? What do you have to prove? And how does this type of claim (i.e., a contaminated food claim) differ from a food poisoning claim? The short answer is, you may have a claim if you have damages -- in other words, if you suffered some kind of injury or harm as a result of the incident. Read on to learn more.

Food Contamination Versus Food Poisoning

First, let's look at the difference between a contaminated food claim and a claim alleging food poisoning. Food poisoning happens when a person eats something and later becomes ill because of the presence of some type of bacteria (like salmonella or listeria) in the food. Food poisoning is often caused by improper handling of food -- i.e., it was left out of the refrigerator too long or not cooked long enough.

In contrast, the term "contaminated food" is generally used for food that has a foreign object in it, like glass, rocks, animal parts, or pretty much anything else.

A contaminated food claim is governed by state tort laws and also by federal and state food safety laws. A tort (personal injury) is the legal term for a civil wrong that causes someone else to suffer an injury -- basically anything someone does to you that harms you.

Who Are the Defendants in a Contaminated Food Claim?

If you purchased contaminated food in a market or a restaurant, the defendant(s) could be any business in the food product's chain of manufacture and distribution. This could include any of the following entities:

  • the company that grew or sourced the food
  • the producer who refined the food (i.e., the company that prepared the food for sale by, for example, canning, bagging, or freezing it)
  • the wholesaler
  • the retailer, and
  • the supermarket or the restaurant that sold the food.

Any of these entities could have potentially contaminated the food, or negligently failed to notice the contamination and remove the food from distribution. (More: Can you be negligent for not doing something?)

What Do You Have to Prove to Win a Contaminated Food Case?

Depending on state law, you can prosecute a contaminated food case under one of two legal theories: negligence or strict liability.

Negligence in a food contamination case is just like negligence in any other type of personal injury case. You have to prove that the defendant did not act as a reasonable person (or more accurately, a reasonable business), would have acted in that situation, and that you suffered foreseeable harm as a result. In most situations where there is a foreign (and harmful) substance in food, it's almost always foreseeable that a consumer could be injured by it.

Strict liability is a legal term that is used in product liability cases. Food is, after all, a product. So, contaminated food is considered to be a defective product. In a strict liability case, you don’t need to prove that the defendant was negligent. The language is different from state to state, but, in general, to hold a defendant strictly liable, you have to prove that the defendant put a defective product that was unreasonably dangerous into the market.

Do I Have to Show That I Was Actually Injured?

The short answer to that is yes. In general, simply claiming that you were grossed out or disgusted does not usually constitute an actual injury. There generally must be some sort of physical manifestation of your symptoms.

A common injury for glass or rocks in the food might be a broken tooth or cut gums, but, if the contaminant was something disgusting in the food, that might not cause an obvious physical injury. But symptoms as minor as some sleeplessness and/or nausea might qualify. Depending on state law, even symptoms like recurring obsessive thoughts about the food might qualify as actual damages, especially if they required you to seek mental health services.

What Should I Do If I Think I Bought Contaminated Food?

If you bought the food at a market and were preparing it or eating it at home when you noticed the contamination, save the food and the contaminant. Without it, your chances of successfully prosecuting a food contamination case are pretty low.

And if you were at a restaurant when you were served the contaminated food, keep the food if you can, but at the very least take a picture of it. Get contact information for anyone who might have witnessed what happened. You generally have to have some proof other than your word.

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