First things first: If you become ill from food you consumed at a restaurant, the likely culprit isn’t actual poisoning. Instead, it is generally a bacterial, viral, or parasitical-caused illness, commonly referred to as a foodborne illness. Can you sue if you contract a foodborne illness from eating at a Philadelphia restaurant? The easy answer to the question is yes, acquiring a foodborne illness from a restaurant is legally actionable in Pennsylvania. However, it’s a complex issue due to how foodborne illnesses are identified, diagnosed, treated, and reported. You will want to contact an experienced personal injury attorney. Read on for more information.
What Are Foodborne Illnesses?
According to the U.S. Centers for Disease Control and Prevention (CDC), an estimated 48 million people become sick each year due to foodborne illnesses. 128,000 of these people will require hospitalization to treat the illness, and around 3,000 people will die. Those most at risk for developing a foodborne illness include:
- Pregnant women
- Young children
- Older adults
- People with weakened immune systems from HIV/AIDS, diabetes, liver or kidney disease, or those receiving chemotherapy or radiation for the treatment of cancer.
Researchers have identified more than 250 types of foodborne diseases. However, some of the illnesses are more common than others. Some of the most common types of foodborne illnesses are:
- E. Coli: E. Coli is a major species of bacteria that can live in the human intestines. It is usually contracted through consuming contaminated food or water and is considered one of the most common culprits in foodborne illness outbreaks around the world. Not all forms of the bacteria cause illness. However, when it does cause an illness, hospitalization is often needed to treat the symptoms. While the symptoms vary depending on the person who is infected and the strain of the bacteria, common symptoms may include severe stomach cramps, diarrhea which may be bloody, and vomiting. Although most people improve in five to seven days, E. Coli can be life-threatening for some. The spread of E. Coli can be avoided by fully cooking food, particularly meat, and by avoiding unpasteurized milk and juices. In November 2019, more than 75,000 pounds of salad containing meat or poultry was recalled by a New Jersey company because the lettuce in the salad was possibly contaminated with E. Coli. Pennsylvania was one of several states in which the salad was distributed and consumers were being warned about the issue.
- Norovirus: Norovirus is the leading cause of contamination of food and water in the U.S. It is a very contagious virus that presents with vomiting and diarrhea. Symptoms may begin with projectile vomiting in as few as 12 hours after exposure, though the illness generally makes itself known after one or two days. Besides consuming contaminated food or water, Norovirus can be spread through contact with an infected person or by touching contaminated surfaces and then putting your unwashed hands in your mouth.
- Salmonella: The CDC estimates that Salmonella is responsible for about 1.35 million illnesses, 26,500 hospitalizations, and 420 deaths in the U.S. each year. Food is generally the source of the contamination, with several different varieties of food being capable of carrying the contamination, including meat, eggs, fruit, spices, and nuts. Symptoms of Salmonella include nausea, vomiting, diarrhea, stomach cramps, and fever. These symptoms generally taper off within about a week. However, Salmonella may also produce Enteric Fever (which presents with symptoms such as high fever, diarrhea or constipation), aches, headache, and drowsiness. Enteric fever is most commonly contracted by travelers outside of the United States and is associated with drinking water that has been contaminated with sewage. Up to 10 percent of those suffering from Enteric Fever who don’t get treatment will die.
- Campylobacter: Around 1.5 million people in the U.S. contract Campylobacter, most often from consuming raw or undercooked poultry or eating something that touched it. This illness can also be contracted through drinking water, contact with animals, or drinking unpasteurized milk. Most cases of campylobacter are one-offs, not associated with outbreaks. Symptoms appear within 2-5 days after exposure, typically resolve within 10 days, and present as nausea, vomiting, diarrhea that may be bloody, cramps, and fever.
- Hepatitis A: The Hepatitis A virus may be contracted through contaminated drinking water, shellfish, or salads. The virus is generally mild and starts 2-4 weeks after exposure. It usually resolves in one to two weeks. Symptoms may include fatigue, low appetite, stomach pain, nausea, and jaundice.
- Listeria: Although foodborne Listeriosis is not a common illness, it is one of the leading causes of death from foodborne illness. There are two forms of the illness. The milder form causes mild to intense nausea, vomiting, aches, fever, and occasionally diarrhea. The deadly form, known as Invasive Listeriosis, occurs when the infection spreads from the gut to the blood or brain. Invasive Listeriosis can cause a blood infection, Meningitis, and—if contracted by a pregnant woman—can result in miscarriage, stillbirth, preterm labor, severe illness, or even death of the newborn. Listeria is contracted through the consumption of raw or unpasteurized foods.
As previously mentioned, most cases of food poisoning are actually foodborne illnesses caused by bacteria, viruses, or parasites. However, there are a small number of actual food poisoning cases in the U.S. each year that are caused by exposure to harmful toxins or chemicals. Exposure may be accidental, occurring due to chemicals being stored in the same vicinity as food, or intentional.
Which Foods Cause the Most Foodborne Illnesses?
A comprehensive study conducted by the CDC of foodborne illnesses in the United States from 1998 to 2008 revealed that the foods most likely to infect individuals with a bacterial or viral illnesses include:
- Fresh produce, including fruits, nuts, fungi vegetables, root vegetables, sprout vegetables, and vine-stalk vegetables. These categories of produce accounted for 46 percent of foodborne illness outbreaks.
- Meat and poultry, including beef, poultry, pork, and game. While these foods accounted for fewer outbreaks, they resulted in 29 percent of foodborne illness deaths during the period studied. Poultry was the deadliest culprit, with 19 percent of foodborne illness deaths being attributed to consumption of raw or undercooked poultry, most of which were caused by Listeriosis or Salmonella.
Aren’t Restaurants Inspected for Conditions That Could Cause Foodborne Illnesses?
Yes. Pennsylvania’s Department of Agriculture’s food inspectors are responsible for inspecting the health and safety conditions of around 45,000 retail food establishments, including restaurants, bars, fairs, farmers’ markets, school cafeterias, and grocery stores. Additionally, they inspect the health and safety conditions of around 6,000 food establishments and businesses where food products are made.
The purpose of these inspections, which follow food codes developed by the U.S. Food and Drug Administration in accordance with federal food safety laws, is to protect the public and prevent the spread of foodborne illness. A 2014 report from the Centers for Science and Public Interest revealed that restaurants are the most likely location to acquire a foodborne illness, with people being twice as likely to become sick with a foodborne illness from a restaurant than from food cooked at home. From 2002-2011, there were 1,610 outbreaks in restaurants that sickened more than 28,000 people.
In Pennsylvania, restaurants are given an unannounced inspection once a year. Some of the common violations found on inspection reports include:
- Mold residue on soda machines
- Failure to place signage about handwashing in bathrooms used by employees
- Food debris on can openers
- Employees wearing jewelry, which increases the risk of contamination, particularly if it falls into the food
- Failure to fully dry dishes before putting them away
- Employees with open beverages in food prep areas where they could potentially spill and contaminate food with bacteria from the employees’ saliva
- Improper food storage in walk-in refrigerators, including chicken and poultry that is not stored on bottom shelves as required
- Exterior doors that are propped open, increasing the risk of insects or rodents entering the restaurant kitchen
- The presence of rodents or insects in the kitchen
- Dangerous chemicals being stored in areas meant for food storage
- A broken dishwasher or lack of a three-bay sink for washing dishes
- Employees not wearing gloves, hair nets, or beard covers during food preparation
- Failure to store food at proper temperatures
- Imminent health hazards, such as a backed-up sewer or a lack of running water
Businesses may have numerous violations on their annual inspection and remain in compliance with food safety laws, or they can have one violation and be out of compliance, depending on what the violation is and the public safety risks posed by the specific violation. The goal for inspectors is to correct as many violations on site. For those issues that will take some time to fix, the inspectors place the restaurant out of compliance and do a return inspection after the business owner has had a chance to correct the problems. Businesses who fail to correct the issues that placed them out of compliance face citations or civil penalties.
Liability in Foodborne Illness Cases
Those suffering from foodborne illnesses from restaurants in Pennsylvania may file a personal injury lawsuit. Wrongful death actions are also a possibility in cases where the foodborne illness results in someone’s death. However, these aren’t always the easiest cases to prove, for the following reasons:
- In absence of an outbreak where several individuals are seeking medical treatment for the same set of symptoms and are discovered to have eaten at the same establishment, it is hard to prove that your foodborne illness was acquired at the restaurant. Many foodborne illnesses aren’t apparent until days or even weeks after exposure.
- Because the government collects data based on outbreaks, state inspectors are not likely to investigate sporadic complaints. In fact, investigators cannot officially blame a restaurant for the outbreak unless at least two people from two different dining groups become ill.
- The source of the contamination is not always the restaurant. Many outbreaks are discovered to have originated somewhere in the production chain, including at the plant where the food was processed, on the truck that transported the food from a distribution center to the restaurant, or on the farm where it was grown.
If you suspect that you became sick due to contaminated food at a restaurant, your experienced personal injury attorney will carefully examine the details of your case to determine all potentially liable parties. Some of the information that he or she will use to do this includes:
- Food inspection reports showing that the establishment was out of compliance and if steps were taken to correct the issues found. If there have been past compliance issues that are capable of resulting in the type of foodborne illness that you’re suffering from, it can be used as proof of negligence in that the owner of the business had knowledge or should have reasonably known that there was a risk of injury to business guests but failed to fix the situation.
- Reports from investigators related to a potential outbreak in which at least two people from two different dining groups suffered similar symptoms of illness after eating at the restaurant.
- Any food recalls that may involve the food products that you consumed that could have been contaminated before being sold to the restaurant.
- Information from your doctor regarding the type of illness you acquired, the likely food group responsible for the illness, and your long term prognosis.
If you suffered an illness that resolved on its own after a few days, it is unlikely that you will recover compensation. However, if your illness resulted in hospitalization, missed work, or led to complications that have affected your life, or if you lost a loved one due to a confirmed foodborne illness outbreak, a skilled attorney can help you to understand your legal options.