When people hear about Salmonella, they most often think of raw eggs, raw chicken or other animal products as the source of this potentially deadly bacteria. Since the beginning of this month however, six non-animal food products were recalled due to the possibility of Salmonella contamination, products which include black pepper, crackers, chia powder and flax seeds. In the same time frame, Atlantic salmon, gouda cheese and egg salad were all recalled due to possible Listeria (Listeria monocytogenes) contamination, and over the past two months, there were three multi-state outbreaks of E. Coli (Escherichia coli) infections traced to clover sprouts, ground beef and a variety of frozen food products. Several other products were recalled because the packages did not properly identify that they contained potential allergens such as tree nuts, which can be deadly to people with severe allergies. There was also a recent recall for bagged ice from the New York-based Wegmans grocery store chain because the ice may contain metal fragments from a broken part of the machine which produced the ice. Despite advances in food safety and disease prevention over the past several decades, food is prepared in mass quantities and often travels the globe before landing on your dinner table. No commercially-sold food product is 100% safe.
The risk of buying contaminated food at a grocery store or eating it at a restaurant is higher than many people think. The Center of Disease Control and Prevention (CDC), estimates that each year one in six Americans (or 48 million people) become ill, 128,000 people are hospitalized, and 3,000 die of foodborne diseases like those listed above.
A food distributor or restaurant may be held liable where a person suffers food poisoning or illness as a result of eating contaminated food. The injured person can pursue a claim for negligence, as well as a claim for breach of warranty, under Massachusetts law. The injured person must show, generally through medical evidence, that the alleged illness was caused by the product and not the stomach flu or other source. The person may also be successful if they can prove that the food was contaminated or unwholesome at the time of purchase, (as opposed to many hours later after being unwrapped or left out of refrigeration). Allergens such as seafood or tree nuts, ingested without knowledge, can also cause serious illness or death depending on the severity of the person’s allergies. Restaurant negligence in food preparation and labeling errors account for hundreds of hospitalizations each year for serious allergic reactions. In order to recover damages for food poisoning, it is not necessary under Massachusetts law to prove that the food seller was negligent – all that is needed is proof that the food was unfit to be sold and that it caused illness or injury.
The Wegmans recall described above highlights another potential danger – unexpected objects or substances. Massachusetts courts employ the “reasonable expectations test” in deciding the viability of injury claims due to foreign objects or substances in food, namely 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). It may be reasonable to find a fish bone in fish chowder for example, but it is unlikely that consumers would expect to find metal fragments in their ice cubes.
Foodborne illness and food allergies can be serious or even life-threatening, but they can easily be prevented by the proper handling of food. Claims for foodborne illness or food-related injury are time-sensitive, and the evidence is often difficult to preserve. If you have been injured as a result of foodborne illness, food allergen-related negligence or a foreign object or substance in your food, and wish to speak to one of our attorneys regarding liability, please fill out a Contact Form, call us at (617) 542-1000 or e-mail info@sugarman.com.