Food Allergy Lawsuits: Four Tips for Reducing Risk

The liability risks associated with guest food allergies should be a top priority for restaurateurs.

In May, the owner of an Indian restaurant in London was convicted of manslaughter after serving peanut-containing chicken masala to a guest who had warned of his severe peanut allergy. The six-year sentence marked the first time a British court had meted out such a serious penalty in a food allergy case. Back in the United States, meanwhile, the parents of a girl with a life-threatening peanut allergy sued Panera after their daughter received a grilled-cheese sandwich that allegedly contained up to two tablespoons of peanut butter. The girl survived going into anaphylactic shock, but her parents, who filed the suit in June, made national news by accusing Panera of “intentional or reckless infliction of emotional distress,” as well as assault and battery.

Research shows that food allergies are increasing in prevalence and severity.

These days, most of us know someone whose child suffers from a peanut allergy, celiac disease, or some other condition that can be dangerously triggered by particular foods (the “big eight” food allergens are eggs, fish, milk, tree nuts, peanuts, shellfish, soya, and wheat). Indeed, research shows that food allergies are increasing in prevalence and severity. One consequence is that juries are more sympathetic to children with allergies than they were 20 years ago. Naturally, plaintiffs’ attorneys are eager to capitalize on this.

Food allergy cases tend to hinge on accusations of negligence or breach of warranty. In negligence actions, plaintiffs argue that the allergic reaction resulted from some form of negligence on the part of the restaurant’s employees, such as their failure to take adequate precautions after being warned of a guest’s allergy. Plaintiffs’ attorneys also frequently attempt to sue under a breach of warranty theory (alleging that the restaurant breached either an express warranty to the customer, or breached an implied warranty of merchantability). While courts in numerous states have rejected breach of warranty as a valid cause of action in certain types of allergic reaction cases, plaintiffs’ attorneys nonetheless often continue to allege those theories. Regardless of the theory alleged, below are four tips for potentially reducing your liability risks amid the rise in food allergy claims.

No. 1: Know the exact ingredients in everything you serve.

Just about every restaurant relies on at least a few ingredients prepared by outsiders: A Thai restaurant might scoop a particular hoisin sauce into nearly every dish. A barbecue joint might use sauce shipped in from North Carolina. Does the hoisin sauce contain MSG? Does the barbecue sauce contain wheat flour? Never assume that anything you serve is allergen-free. Know precisely what your restaurant is serving at all times—and train your chefs and servers to do the same. Also, document that you have a training plan in place and that it was followed.

No. 2: Encourage customers to tell you about their allergies.

Demonstrate your good-faith desire to know about any and all guest food allergies before the food is served. Put a line or two in your menu to the effect of, “If you have food allergies, please let us know.” Some guests are less careful and will order food without notifying waiters and chefs of their allergy issues. If this happens, you want to be able to show the judge or jury that you took reasonable precautions by proactively seeking allergy information from your guests.

No. 3: Create an effective system—and write it down.

When a guest tells the server about an allergy, the restaurant should have a systematic way of making this stand out to the chef and kitchen staff. For example, you might use a blue ticket instead of a normal white one. The idea is to send a message to the kitchen: This is a special order! Work with your legal counsel to put this system and related policies into writing. Determine exactly how you want this procedure to work—from the ordering, to the preparation, to the final delivery—and be sure to follow industry best practices geared toward preventing cross-contamination. (Properly wiping down utensils is a particularly important step; be sure your training repeatedly emphasizes the potential for trace amounts of allergens to trigger reactions in sensitive guests.) Consider all possible scenarios. If two customers at the same table order the same dish—one with peanuts and the other without—how does your policy guard against the allergic customer receiving the wrong dish?

No. 4: Save ‘special order’ tickets.

Let’s say a guest tells your server about a wheat allergy and the server uses a blue ticket as described above to signal the special order status. If you throw that ticket away at the end of the night, you have lost the evidence that would show that, in fact, your restaurant took reasonable precautions. Keeping tickets for a reasonable period of time helps document your good-faith efforts to guarantee food safety.

Not so long ago, restaurateurs assumed that everybody could eat basic foods such as eggs, fish, milk, or nuts. Some even rolled their eyes at the notion of food allergies. Today, it is no longer acceptable to feel that food allergies are somehow a form of hypochondria. By treating the issue with the deadly seriousness it deserves, you can better protect your guests while also reducing the risk of having to defend your restaurant in court.