Restaurant owners are responsible for maintaining the restaurant property safe for its patrons, which includes avoiding conditions which could cause injuries to those dining at their establishment.
Generally speaking, in terms of being harmed at a restaurant, injuries such as slip and fall injuries are the most common. However, there are many different ways in which a person may be harmed or injured. Some additional examples of injuries that a restaurant may be responsible for include those caused by negligent security, or dram shop law violations.
One example of a restaurant injury that is not often thought of involves a dirty restaurant. Injury may occur when the restaurant fails to properly sanitize and maintain their facilities, which could put food and beverages at risk. If you feel you have been harmed by a dirty restaurant, you essentially have two options:
- File a Complaint With the FDA: Restaurants are required to meet specific safety and sanitation standards, set forth by the Food and Drug Administration (“FDA”). This federal agency ensures that the standards they have established are being adhered to in various settings, such as restaurants. If you had an injurious experience at a restaurant, especially if you believe it occurred because the restaurant was not compliant with FDA standards, you should file a complaint with the FDA so they may conduct an investigation; or
- Sue the Restaurant: You may find the FDA investigation unsatisfactory and wish to file a lawsuit against the restaurant yourself. There are many things to consider prior to doing so, and will most likely require that you retain an attorney to represent your case.
What Do I Need for a Successful Lawsuit?
In order for your lawsuit to be successful against the restaurant, it is important to first understand the legal theory of negligence, as well as the difference between “food contamination” and “food poisoning.”
As previously mentioned, restaurant owners have certain duties to their patrons. Their primary duty of care is to keep the restaurant reasonably safe for their patrons. One example of this would be the duty to properly prepare, cook, and handle food. This is required in order to avoid undercooked or contaminated foods, which could poison patrons. When a restaurant fails to provide that level of care to its patrons, they may be found to be negligent.
While food contamination and food poisoning are related, their differences are significant when attempting to file a lawsuit. Food contamination generally refers to a foreign object in the food, such as hair or bacteria. Alternatively, food poisoning or “foodborne illness” refers to illness resulting from contaminated food, or because the food was improperly handled in some way.
A common example of this would be a piece of chicken that was improperly cooked, or a pot of soup kept at an improper temperature. These conditions could allow for bacteria to grow, which could result in foodborne illness. As such, this may constitute negligence, as the restaurant failed to provide properly cooked and/or uncontaminated food.
If your experience resulted in you contracting foodborne illness, you may have a legal case against the restaurant. However, in order to successfully sue based on the theory of negligence, you will need to prove that the negligence of the restaurant was the direct cause of your injuries or illness.
You will need to provide evidence proving that:
- Either the act or omission of the restaurant which caused your injury was foreseeable by the restaurant owner;
- The actions were negligent;
- The actions directly caused your injuries, and no other factors were contributory; and
- Your damages are measurable and quantifiable, such as medical expenses.
It is important that you gather as much evidence of the incident as possible in order to have a strong case. This is especially true for evidence that like the acts or omissions of the restaurant to your injuries. An example of this would be how you should always obtain any incident report that was filled out because of your injury. Most restaurants have company policy which requires them to complete an incident report, documenting the details of the incident as well as witnesses and their statements.
What Types of Damages or Remedies Are Available?
Damages generally consist of monetary compensation for:
- Medical bills;
- Lost wages;
- Pain and suffering; and
- Any other out-of-pocket expenses resulting from the incident.
It is important to discuss limits to the owner’s responsibility, as they may affect the size of your damages award. An example of this would be how restaurant owners are not liable for patrons who are injured in restricted areas of the restaurant. Restaurant owners do not have a duty to protect patrons from the acts of a third party, such as another patron, unless that third party is an employee of the restaurant.
Damages and remedies available in a dirty restaurant case are largely determined by the theory of contributory negligence. An example of this would be if a server brings a hot plate to the table. The server informs the patron that the plate is hot, and instructs them not to touch it; however, the patron ignores the warning and touches the hot dish. It is unlikely that the restaurant owner will be held liable for the patron’s injuries, as contributing to your own injury will either entirely bar or limit your ability to recover damages.
Restaurant owners are not liable for injuries that were unforeseeable, such as if an earthquake occurs which causes you to fall and hit your head on the table. A court would not likely hold a restaurant owner liable for your head injury, due to the fact that they did not cause the earthquake.
If there is a dangerous condition that the restaurant owner is unaware of, or did not have time to discover the hazard, the owner may not be held liable for associated accidents and injuries. An example of this would be if another patron recently spilled their drink on the floor and created the conditions for a slip and fall injury.
What if There Are Issues with COVID-19 Safety and Health Protocol?
Because of the COVID-19 pandemic, the Centers for Disease Control and Prevention (“CDC”) has determined a set of safety and health protocols for restaurants and bars. Restaurant owners are not actually required to adhere to these recommended precautions; they have discretion in terms of whether to implement COVID-19 protocol, in collaboration with state and/or local health officials.
Some examples of suggested COVID-19 safety and health protocol for restaurants include, but are not limited to:
- Providing lowest-risk options, such as delivery and curbside options;
- Implementing protection practices, such as more rigorous cleaning protocols; and
- Various hand hygiene and respiratory etiquette practices.
In terms of suing a restaurant for failing to adhere to CDC safety and health protocol, the chances of a successful lawsuit are slim. Unfortunately, CDC guidelines are just that; guidelines, and not laws. It is up to the local government of each locality to determine what action may be taken against restaurants who are not making efforts to operate safely. If you suspect that you have become ill because of a restaurant violating COVID-19 safety precautions, you should contact your local health department in order to determine what your legal options are, if any.
Should I Hire a Lawyer for Help with My Claim?
If you have experienced injury because of dining in a dirty restaurant, or feel you should take legal action against a restaurant for failing to observe COVID-19 health and safety guidelines, you should consult with an experienced personal injury lawyer local to you.
It is important that you work with an attorney in your area, as state laws vary widely in terms of restaurant negligence and recovery. An experienced personal injury attorney practicing in your specific state can help you understand these laws, and how they will affect your case. Further, an attorney will also be able to represent you in court as needed, especially if you choose to file a lawsuit against the restaurant.
