People who suffer from food allergies face constant challenges when they go out to eat. Being exposed to an allergen can have serious or even fatal health consequences. For restaurants, one challenge of food allergies is their sheer variety
. When someone is exposed to an allergen in restaurant food and suffers serious injury as a result, the question may become whether the restaurant bears legal responsibility.
Liability requires negligence
Responsibility for personal injury is usually a question of negligence. A negligence claim against a restaurant must show that the restaurant owed the patron a duty of reasonable care, breached that duty, and as a result of the breach the patron was injured.
In any negligence case, the duty of reasonable care needs to be based in law, created either by statute or by the courts. Nevada has a lengthy set of rules restaurants must follow for general sanitation and food preparation, chiefly to avoid the spread of food-borne illnesses
. Nevada law also requires restaurants to train their employees in food safety, including general training in food allergies. NAC 446.053. Restaurants also must label prepackaged or repackaged food with lists of ingredients, including any source of major food allergies. For labeling purposes, “major food allergens” include milk, eggs, fish, shellfish, nuts, wheat, and soybeans. NAC 446.187.
But in general, Nevada does not require restaurants to actively protect their customers from allergens. That makes sense. A restaurant can’t predict the allergies of every person who walked through the door. Instead, people who have food allergies must take steps to protect themselves, by asking questions and knowing the things they must avoid.
Where negligence might apply
A restaurant might bear liability for a customer’s allergy-related injuries if certain facts are present. Here are a few examples:
- Failure to comply with training or labeling laws. If a restaurant doesn’t properly train its staff in the basics of food allergies, it may be committing negligence per se (that is, its negligence might be presumed from the fact that it was not complying with a regulatory requirement). But the failure to comply with regulations would need to be causally connected to the patron’s injury.
- Providing bad information. A restaurant could be liable if it doesn’t provide accurate information once asked. For example, if a patron asks if a dish contains peanuts and the staff incorrectly responds that it does not, the restaurant may be liable if the patron suffers serious injury. Ultimately, this is why Nevada requires its restaurants to train its personnel: to avoid harmful mistakes.
- Failure to respond to an emergency. When a restaurant patron suffers a medical emergency, the restaurant becomes responsible for taking reasonable steps to help. That might include promptly calling 911 and taking other steps that an ordinary person might take. This doesn’t mean that the restaurant needs to take every possible step. For example, a restaurant that doesn’t keep an EpiPen auto-injector on hand to respond to serious allergic reactions isn’t necessarily behaving unreasonably.
We are happy to answer your questions
For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area seek compensation for their injuries. If you have questions about your legal options following a serious allergic reaction to food and would like to speak to a lawyer, call us today for a free consultation at 702-388-4476, or reach us through our contact page