Foodborne Illness Litigation: Manage Your
Risk From day One.
of Article: http://www.4hoteliers.com/4hots_fshw.php?mwi=3936
Daydots Food Safety Solutions
Saturday, 4th April 2009
not only decreases the risk for foodborne outbreaks, but it also decreases
the risk of getting sued -
good plaintiff’s attorney looks at four things in building a foodborne
reviews the health department’s investigation, if one was made, as
these findings carry considerable weight in court, since the health
department is often considered an unbiased third-party.
Second, she uses
the victim’s symptoms and laboratory tests to determine what may have caused
reviews public records to see if the suspected source of contamination has a
history of failing to comply with health department codes.
examines the suspect source’s food handling techniques. A foodservice
provider has little control over the first two items mentioned above but has
complete control over the second two items.
warnings from the health department will raise red flags. Keeping a clean
record obviously minimizes the risk of causing a foodborne illness, but it
also helps reduce the invitation of unwanted scrutiny, which can ultimately
lead to a lawsuit. A health code violation is not simply a slap on the hand;
it is a record that may invite litigation, and could be used in court to prove
lesson to be learned is that complying with the health code may be more
important than most restaurant owners and managers think. Compliance not only
decreases the risk for foodborne outbreaks, but it also decreases the risk of
getting sued. When a mistake happens and a health code violation is found, it
is imperative to treat the finding seriously, immediately correct the problem
and document the correction.
the violation be later used in a lawsuit, evidence the problem was corrected
can go a long way in disproving the cause of the illness, or at least
defending against punitive damages.
restaurant or foodservice establishment is not necessarily off the hook even
when it does everything right. An end seller is strictly liable for its
suppliers’ mistakes. For example, Walmart was recently sued in Colorado,
along with a “john doe” supplier for selling salsa containing contaminated
chili peppers. The peppers sickened more than 1,438 people across 43 states
in what was called the Salmonella Saintpaul outbreak.
the supplier cannot be found, the end-seller can be stuck with the bill. It
is therefore imperative for end-sellers to keep records of who supplied
ingredients in case it is necessary to bring a supplier into a lawsuit. Good
record keeping also applies to repairs of refrigerators, dishwashers and
other devices that protect customers.
is also important to have good insurance. Foodborne illness settlements can
range from the low thousands where a plaintiff has few doctor bills or lost
wages, up to more than $15 million, as was the case for a plaintiff injured
in the well-known Jack in the Box E-coli outbreak.
commercial liability policies will cover costs of defending a lawsuit and
will also cover a plaintiff’s damages. But this may not be adequate. For
example, a foodborne illness outbreak or a product recall can substantially
impair a foodservice provider’s bottom line. Business interruption insurance
covers against losses from temporary closures. Trade-name restoration
insurance can help protect revenue streams lowered by adverse publicity from
a foodborne illness outbreak.
foodborne illnesses are avoidable through good practices, which also help
minimize scrutiny when lawyers search for a defendant. When illnesses do
occur, insurance can save the day for everyone involved.