Recalled Food Can Lead to Legal Claims

Most people assume you can only contract Salmonella when eating raw products like eggs or chicken.  However in the last few months, products such as black pepper, crackers, chia powder and flax seeds have all been recalled due to risk of Salmonella. Also, recently there have been recalls due to bacteria’s such as Listeria in foods like Atlantic salmon, gouda cheese and egg salad and E. Coli outbreaks have been found in ground beef, frozen food products and clover sprouts.  Another reason for recent recalls have been because of packages improperly labeling ingredients that cause common allergies, such as tree nuts. Wegmans was recently forced to recall bagged ice because it was discovered that some bags might contain metal fragments from the ice making machine. Although food safety has made improvements to disease prevention in the last few decades, food is currently made in larger quantities than ever before and sent to and from different locations around the world.  The reality is that no commercially-bought food can ever be 100% safe. 

The odds of buying contaminated food from a local grocer or accidentally eating it at a restaurant are much higher then people would like to believe. The Center of Disease Control and Prevention (CDC) assessed that one in six Americans, which is about 48 million people, get sick from food contamination, 128,000 are hospitalized and as many as 3,000 die each year because of foodborne diseases. 

Restaurants or vendors can be held liable if a customer contracts food poisoning as a result of their contaminated product. According to Massachusetts law, a consumer can make a claim for negligence in addition to a breach of warranty claim. The person must have medical proof that their illness was contracted because of contaminated product rather than their symptoms stemming from a general stomach bug or flu. Proving that the food was contaminated at the date and time of purchase can also help with these claims. Ingesting allergens like seafood or tree nuts without knowledge can also cause illness or death if a customer’s allergy is severe enough. Hundreds of hospitalizations occur every year due to restaurant negligence in either labeling or food preparation.  To receive damages for food poisoning, it is not necessary in the state of Massachusetts to prove the seller was negligent, all that needs to be proven is that the food did not meet selling standards and that it caused an illness.

The previously mentioned Wegmans recall showcases a danger many do not consider- foreign objects or substances in food. Courts in Massachusetts use a test called the “reasonable expectations test” to determine the validity of a claim of illness due to unknown substances in food. This involves asking whether "the consumer reasonably should have expected to find the injury-causing substance in the food." Phillips vs. Town of West Springfield, 405 Mass. 411, 412 (1989).  For example, a fish bone could accidentally appear in seafood chowder, but metal shavings in a bag of ice would not likely fall under the reasonable category. 

The proper handling of food can prevent these serious, and sometimes even deadly, foodborne illnesses.  Evidence in these cases are often hard to find so it is imperative to act quickly if you believe you received food poisoning due to a restaurant or food store.  If you believe you have been a victim of food-related negligence, and would like to speak to an attorney at Sugarman, call us at (617) 542-1000 or email info@sugarman.com.