On AL.com today, I saw a story about nineteen people getting ill from food poisoning in Morgan County. You may read the article here. In my years of practicing law, I have been contacted by numerous prospective clients about potential food poisoning cases, and it is very difficult to explain the law to them, but it is not an easy case. These cases require a good amount of proof in order to even get a jury to listen to the case. Typically, these cases get thrown out of court by the Judge on the Defendant’s Motion for Summary Judgment as was the case in Hogue v. Logan’s Roadhouse, Inc., 61 So.3d 1077 (Ala. Civ. App. 2010).
Usually, three claims are made with regard to these types of cases: Negligence, Wantonness and the Alabama Extended Manufacture’s Liability Doctrine (Alabama’s Product Liability law and known as AEMLD). Under the negligence and wantonness claims, the injured person(s) has the burden to prove that the restaurant did not act with due care in preparing the food. It is NOT enough to say, I ate at the restaurant and got ill. The injured person must show, through evidence, that the food smelled funny, tasted odd, or was discolored such that the restaurant should have known it was spoiled. Further, when there are several people who were injured, it must be shown that they were injured from the same food or agent which tainted the food.
Under an AEMLD claim, the injured party has to show that the food was defective when served. This usually requires the food so the defendant may inspect it, and it may also require expert testimony to show how the food was defective. One issue with an AEMLD claim is the destruction of the food before having it inspected by the defendant. This may not be fatal, but it can hurt. The other issue with this type of claim is the greater expense in hiring experts.
If those liability hurdles are cleared (negligence or AEMLD), the causation element must be met. What does this mean? The injured person must carry the burden to show that the food probably caused the illness. When there are multiple injured persons, this is easier to do. Another method is to show the health department’s inspection report. Finally, having a doctor relate the cause of the condition to food poisoning is a must. Many symptoms of illnesses such as E-coli and Salmonella can be delayed 24 hours, so simply exhibiting nausea or vomiting or stomach problems shortly after the meal, or even hours after the meal, does not mean that such symptoms were not caused by a previous meal. If a doctor cannot state to a reasonable degree of medical probability that the food caused the illness, it will be difficult, if not impossible, for the injured party to carry his/her burden.
While these types of cases do exist in Alabama, they are difficult to prove. However, it can be done if the case is properly investigated and prepared.