Minimizing Your Liability Risk and Foodborne Illness Lawsuits
Restaurant Hospitality Magazine July 2004 “We don't have to tell you that operating a restaurant is a risky proposition. But if you want to ascertain just how sensationally risky it really is, connect to the Internet, swallow hard, and type www.marlerclark.com into your browser's address line.” www.marlerclark.com
Meat Poultry Magazine – July 2003 – “Hammer Time” “Bill Marler has heard all the excuses: “Bill Marler has heard all the excuses: “It’s not fair.” “It’s not fair.” “People are just suing over a tummy ache.” “People are just suing over a tummy ache.” “We shouldn’t be blamed.” “Although somebody got sick, we did everything right.” “Why can you sue me?”
To Put Things in Perspective According to the CDC, microbial pathogens in food cause an estimated 76 million cases of human illness annually in the United States 325,000 hospitalized Cause up to 5,000 deaths
Marler Clark, LLP PS Since 1993 Marler Clark has represented thousands of food illness victims in every State. Settlements and Verdicts - nearly $300,000,000 We only bring forward a fraction of the victims who contact our offices. Some examples of your “missed opportunities:”
“Christening” the Carpet “I opened a box of Buffalo wings and dumped them out on a plate to be cooked in the microwave. An unusually shaped piece caught my eye and I picked it up. When I saw that the ‘piece’ had a beak, I got sick to my stomach. My lunch and diet coke came up and I managed to christen my carpet, bedding and clothing. I want them to at least pay for cleaning my carpet, etc.”
Strict Product Liability – or, all I ever learned in Law School Strict Liability Are you a manufacturer? Was the product unsafe? Did product cause injury? Negligence Are you a product seller? Did you act “reasonably”?
It’s called STRICT Liability for a reason The only defense is prevention It does not matter if you took all reasonable precautions If you manufacture a product that makes someone sick you are going to pay Wishful thinking does not help
Why Strict Liability? Is it Unfair? It puts pressure on those (manufacturers) that most likely could correct the problem in the first place It puts the cost of settlements and verdicts directly on to those (manufacturers) that profit from the product
Incentives – Litigation Can Work – A Little History Lesson Jack in the Box Odwalla
June-July, 2003 Salmonella javiana outbreak at a major-chain (Chili’s) Restaurant 305 persons confirmed ill 9 hospitalized, and 179 sought medical care restaurant closed for 11 days 28 employees tested positive for salmonella depressed sales in region due to bad publicity 8 months after outbreak, store closed for good
Health Department Report: “The investigation revealed environmental factors such as loss of hot water, loss of all water, the large number of ill employees at the facility, a general lack of handwashing and dish- machine sanitizer failure … contributed to/exacerbated the spread of salmonella javiana.”
“The ice water in the bucket became, essentially, "hepatitis soup," said Dr. Michael Osterholm, an epidemiologist at the University of Minnesota who has investigated many hepatitis outbreaks.” “Government Makes It Official: Blame Scallions for Outbreak,” by Denise Grady, NEW YORK TIMES, November 22, 2003
Planning AGAINST Litigation – What Is Really Important Identify Hazards - HACCP - Do you have qualified and committed people? Insurance (have lots!) Involve Vendors - -Do they really have a plan? - -Ever visit them? - -Indemnity Agreements - -Additional Insured
Planning AGAINST Litigation – Establish Relationships They are your best friends!