If you are the victim of food poisoning, you have a right to sue the party responsible in a court of law. A restaurant, store, or even a private individual. Restaurants and stores usually have insurance, and they also have something called "goodwill," which is their regular customer base; they therefore have a financial incentive to keep incidents of food poisoning caused by their services out of the public record. This makes restaurants and stores better parties for a lawsuit than private individuals.

The first thing a victim of food poisoning should do is go to a hospital for medical treatment. There are two reasons for this: 1) the doctors at the hospital can document that the victim is actually suffering from food poisoning, after ingesting food purchased from the defendant; and 2) the incurring of an actual bill for a particular sum of money is in the law called "damages." A food poisoning is a tort, as unintentional negligence, and the complainant is entitled to compensatory damages, including pain and suffering. Another plus is that most hospitals will give care in the Emergency Room, billing the patient, and in effect rendering medical services on credit. This billing constitutes a cause of action, representing the suffering of damages, and the need for compensation.

Lawsuits must be filed on a timely basis, which means sooner than one year (the statute of limitations generally runs one year). Actions can be filed in Small Claims court, where the claimant does not need a lawyer, and the basic costs are minimum (all filing fees and paralegal or attorney's fees, can also be recovered), providing the amount sought does not exceed $5,000.00 (in California). To sue for more than $5000.00, the lawsuit has to be filed with the Municipal Courts; and above $25,000.00, in the Superior Courts. The higher the court, the more procedural law must be known by the litigant, so it becomes increasingly necessary to employ an attorney who specializes in tort actions, especially concerning retail transactions.

The burden of evidence is upon the claimant (the person who files the lawsuit), to prove by a preponderance of the evidence that he or she was given food poisoning as a result of ingesting food that was obtained from the defendant. A receipt from the defendant, coupled with a dated medical record, and billing, is all evidence that food obtained from the defendant caused the poisoning; to make the final point witnesses to the actual ingestion, must give testimony under penalty of perjury that they witnessed the claimant ingest food obtained from the defendant, that caused the food poisoning. (The documents should show, if they are timely, that this succession of events took place, without the testimony of an eyewitness; but in courts, eyewitnesses are very credible).

Food is very important to everyone, and because it is an area where many people take it for granted, multitudes of people are vulnerable to being poisoned by the one thing they expect to give them nourishment: their food. The business of selling food involves the obligation to sell food that is not a danger to the buying public. This legal and moral obligation is not subject to discussion or negotiation. Anyone who sells food that is in fact poison, must be STOPPED. At the very minimum, a public record should exist that is available to others, warning them of what has transpired, and the level of risk involved. Additionally, people who are forced to suffer being poisoned have been violated. They are entitled to recover compensation for their pain and suffering, and for the costs associated with their violation.

DISCLAIMER: The Justice Center does not give legal advice. This pamphlet is provided free of charge, as a public service for general informational purposes only. No warranty is made or implied. Persons with questions of law are encouraged to seek the advice of an attorney.