Episode 13: Allergic Reaction to Food
Hello hello hello.
Everybody, I am glad to be back here on.
A lawyer and today I want to answer a question that may help somebody out there who maybe had suffered a food allergy.
Come as a result of maybe buying a particular dish at a restaurant and something has happened to them and they.
Don’t know what.
They should do.
So this particular ask Lori question is going to be can I pursue a claim against a restaurant for my food allergy claim?
Hearing set of facts that I’m going to give you OK, and the reason why I wanted to talk about this.
First of all, you guys is because I was met with the case.
Where I had a particular client come in who suffered an allergic reaction to some food that she purchased, and so I’ve never done this type of claim before, so I had to go in and pull.
Up case law.
And all this kind of stuff and analyze the law and then come up with whether or not she could pursue a claim against them.
This was definitely a lot of work and I just want to share this with some lawyers out there or somebody out there who may be faced with the same situation and this could possibly help you if you’re a lawyer and you’re not here in Texas.
Or are you a person that’s not here in Texas and you had?
This probably happened to you.
I will give you the case site and you can probably.
Just jeopardized this case and find some case law in your state.
That would be a novelist to the situation that I’m talking about today.
Now let’s say for example I’m going to give you the facts.
In this situation, let’s say for example you have gone to a restaurant and you have an allergy.
To a specific ingredient, you see a particular dish that you like.
You inquire by asking the server of the food does this particular dish contain a specific ingredient that you are allergic to?
For example, and in this example, I’m going to say shellfish.
You tell them then that you also.
Have an allergic reaction to come to shellfish and you particularly asked them, hey, does that dish?
Contain shellfish I am allergic to shellfish and I cannot have shellfish.
And they tell you no, it doesn’t.
Now you didn’t specifically ask.
Hey, does can you please tell me the ingredients come to this particular dish.
They run off the list of ingredients to you and it they omit.
That the fact that this particular dish doesn’t have this ingredient.
So now your head, you’re like OK, this doesn’t have this particular ingredient, so it’s good to go ahead and purchase.
Then go and.
Purchase the food.
And unfortunately, what happens?
The particular dish has the exact ingredient, in this case, shellfish that you are allergic to in this situation, do you have a claim?
I would argue yes, you do have a claim and the legal claim under which you would pursue a claim against the restaurant.
If Mike in in this set set of circumstances and in my client set of circumstances would be negligent and possibly DTPA, now we all know what the elements of of negligence are, duty, breach, causation, damages.
So just to simplify it a little bit better.
They were obviously under a duty to disclose whether or not this particular.
Uhm, dish contained shellfish.
You and this is because you actually told them that you were allergic to shellfish.
You actually may act them.
Does this particular dish contain shellfish and they actually read off ingredients you and they omit that particular agreement ingredient.
That you’re allergic to and then you purchase it.
So in this particular situation there was a duty for them to disclose it.
It obviously we know what the breaches.
We obviously know what happens to you, and we obviously know the damages that are incurred or that you suffered as a result.
Now we get over here to the other claim that I would argue, and that is DTPA now.
What is dtpa?
Up here in Texas Dtpa 17.46 B 24 states to follow a false misleading or deceptive act or practice to include failing to disclose information concerning goods or service.
That was known at the time of the transaction.
Is such failure to disclose such information was intended to induce the consumer into a transaction in which the consumer would not have entered into had the information being disclosed in my particular set of circumstances, that’s exactly what happened.
They failed to disclose the particular dish.
This particular in GR.
The server new at this particular time, UM, and made a representation at the particular time that this particular dish did not contain this particular ingredient.
In my case, shellfish, so they definitely was aware at the time specifically.
When they gave you the list that it did not have it and you relied on that and you purchased it.
So that’s what triggers the TPA.
So I hope this answers and clears up some ambiguity out there for what types of legal claims you can bring.
Bring against the restaurant.
If this particular situation happens to you now.
Here’s what you can do to protect yourself to help an attorney out there.
If you have this sort of situation happen to you, or let’s say for example this doesn’t happen to you.
But you’re somebody who has an allergy and you just want to make sure you want to protect yourself so that if this does happen to you, you can actually go to your lawyer with some some good stuff to help you.
The lawyer build the case for you.
The first thing I want you to do and you want to grab a pen and paper.
You guys first thing that you want to do.
And this is for anybody.
I’m actually gonna create some sort of card that you can actually download, or you can just kind of keep this handy and you can just write this down and keep it.
Keep it with you.
So in the event you suffer an allergic reaction, you’ll have this information already memorialized.
You can just give it to an attorney first thing you want to do is get the address of the restaurant.
The second thing you want to do is identify the manager working.
Get his or her name, get their title, get the phone number.
Then you want to identify the chef in the kitchen.
What’s their name?
Then you want to identify the server exactly by his or her name, and then you also want to make sure the server tells you the ingredients.
Have the server even write them down for you.
OK, do you want to also keep your receipt?
And then you want to also document what you’re allergic reaction.
And then you also want to make sure you write down who was with you at the time.
Get their information if it’s your friend.
If it’s like your mother, and that’s that’s very dumb.
That’s very crucial, because if it’s like.
Somebody who’s close.
To you, you may even.
They may even possibly have a claim for a bystander claim as well.
And then you also want to make sure to document everything that’s happened to you as a result of you inhaling this particular dish with this particular ingredient, OK?
There is a case and I’m going to give you guys a site that I use and kind of developing.
That’s my fun guys.
Sorry, but you guys kind of want.
To write down this particular.
Uhm, this wet.
This particular case that I looked at in reviewing my client case and in this particular case the jury actually came back in for the yeah, I believe.
It was the.
Jury let me look at my notes here.
I think the court actually granted.
The directed verdict claim on the plainest DTPA claim that they tried to bring and then they also actually came back and found the the plane of Contributorily responsible for what happened and in her case she actually had.
A shellfish allergy right which is kind of like what I’m talking to you guys about right now in my hypothetical.
So in her particular case, the one of the reasons why they found her contributorily negligent is because it wasn’t clear as to whether or not the salmon croquette that.
She ordered it.
Wasn’t clear as to whether or not she specifically asked whether or not the salmon croquette had.
Uhm, or contain the ingredient of shellfish that was not clear.
Her testimony kept going back and forth between she and her friend, so that wasn’t clear also.
Another the other reason why that the DTP a claim failed was because that because the court reasoned that there was no evidence in the record that the employee who told her that the croquettes contained only salmen failed to disclose information that she knew at the time, or that it was done to induce her to buy the croquettes.
What does that mean?
That particularly means that this particular server didn’t even know like what the salmon even contained.
Like has she actually known the ingredients and she told the plane of what the ingredients were at the time?
And you know that was actually done to induce her.
That claim probably would not have failed, but there was no evidence to show that.
And so in my fax scenario that I just gave you guys, they’re actually there actually is evidence of that, right?
So that was the reason why that claim failed. The particular case site is a. It’s given and Floyd versus Luby’s Inc. Texas Court of Appeals, Second District, 2015. You can actually go to that case.
Read more about that if if you’re a lawyer out there and are met with this, this will kind of give you some guidance.
It was definitely gave me so much clarity on this particular claim and I hope this helps you guys.
Again, my name is attorney Roxell Richards.
I’m licensed here in Texas as well as California and if for.
Some reason this particular situation happens to you.
Give me a call.
I’d like the opportunity to review your case to see if your set of facts rises to the level of asserting a legal claim.
My phone number is 7139740388. You can also go to ask.
Foryourpodcast.com and submit your questionnaire. I’d love to answer your question on our next episode. Thank you so much and you can also find me at getinjuryhelp.net look forward to hearing from you guys soon and again. My name is attorney Roxell Richard. Thank you.
You’d better absolutely are powered by Roxell Richard law firm.