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Can I File For A Food Allergy Claim?


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-Attorney Roxell Richards
Roxell Richards

Can I file for a Food Allergy claim?

In this blog, I chose to discuss food allergy claims. The reason why I chose this topic because I had a client whose case I accepted. I had never accepted this type of case so I figured this would not only be a great learning opportunity but her case was one that screamed justice. So I accepted. Furthermore, this blog will help someone else out there who may be handling a food allergy claim as well. I will be addressing what legal claims would apply, analysis of those claims to the facts in my scenario, as well as some others that may apply. Now let’s get into it.

Here is the sample fact scenario:

You have a food allergy, for example, you are allergic to shellfish. You and maybe a guest go to one of your favorite restaurants. You see some food that sparks your appetite. You ask the waiter or server of the food dish if the food dish contains shellfish. The server tells you no. You then make the server aware that you are allergic to shellfish. You again have them confirm with the chef in the kitchen as to whether or not the dish has shellfish. The server after having confirmed with the chef comes back and tell you the dish doesn’t have shellfish. So the server comes back and tells you again NO. You order the food and suffer a terrible allergic reaction and find out the dish has exactly the ingredient you are allergic to, SHELLFISH is in the dish you ordered. You are hospitalized for a few days as a result and have medical bills.


You go to a lawyer and want to know if you can bring a claim against the restaurant for your allergic reaction to the dish.

The Answer:

Yes, in this case, I would say you have a possible legal food allergy claim against the restaurant for the injuries suffered. There are at least two legal theories under which I would use to hold the restaurant responsible. Now there are more that I am to likely issue spot which I will mention later in this blog. But based upon my research there are two legal theories that I found that would likely apply. They are negligence and violation of DTPA (Deceptive Trade Practices Act)


What is negligence?

Negligence is a legal theory used in order to hold the Defendant, i.e. the Restaurant liable in order to recover monetary damages for the food allergy claim.

The elements of a cause of action for Negligence are:

  1. The defendant owed a legal duty to the plaintiff
  2. The defendant breached the duty.
  3. The breach proximately caused the plaintiff’s injury.

Nabors Drilling, U.S.A. Inc., v. Escoto, 288 S.W.3d 401, 404 (Tex.2009) (elements 1-3)

What does legal duty means?

A legal duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. See Midwest Empls. Cas., 293 S.W.3d at 776. The existence of a duty is generally a question of law. Nabors Drilling, 288 S.W.3d at 404; This simply means that the jury does not get to choose what the legal duty is that the defendant has to meet. The court has to decide what this duty is. So as your lawyer, it is our  job to determine what the duty is and submit to the court.

Within each legal duty owed, is a required standard of care.  The different standards of care a defendant may be required to exercise are (1) ordinary care (2) highest degree of care (3) a child’s degree of care, and (4) any degree of care established by statutes.

Duties can arise either by statute or by common law. When we say statute, this means that the law mandates the standard of conduct to protect others against unreasonable risks. For example, civil and criminal statutes, administrative rules, and city ordinances can all be basis for imposing a statutory duty recognized in tort. See Perry v. S.N., 973 S.W.2d 301, 306-07 (Tex. 1998) (civil statute); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985) (city ordinance); Carter v. William Sommerville & Son., Inc., 584 S.W.2d 274, 279 (tex. 1979) (penal statutes); Continental Oil Co. v. Simple, 604 S.W.2d 530, 534 9Tex. App.-Amarillo 1980, writ ref’d n.r.e.) (administrative rules and regulations).  Common law means that the courts have provided the law on what the duty is.

Now that I have explained to you what the legal duty means, let’s discuss what the legal duty is that is owed to the plaintiff in our fact scenario.

What is the Legal Duty owed by the restaurant to the plaintiff?

In most circumstances, a defendant will be held to the standard of “ordinary care” See Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 250-251 (Tex. 1943)  Courts have held that the concept of ordinary care is so elastic that it can meet all emergencies, and the amount of care to be applied will depend on the circumstances presented. Prather v. Brandt, 981 S.W.2d 801, 811 (Tex. App.-Houston [1st Dist]. Depending on whether the defendant is a non-professional or professional, the ordinary care standard varies slightly.  For a non-professional (i.e. the general public) to exercise ordinary care, the defendant’s standard of care is defined as what a person of ordinary prudence would or would not have done under the same or similar circumstances. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984)  When a professional breaches a duty, the standard of care defined as what a professional of ordinary prudence in that particular field would or would not have done under the same or similar circumstances. See e.g., Texas PJC-Malpractice, Premises & Products (2016), PJC 50.1 (physician’s degree of care).

In this case, we will argue the legal duty owed to the plaintiff is one of ordinary care.   This means, that the server has a duty to use exercise ordinary care to do what a server should or should not have done under these circumstances.

Therefore, the first element is met.

Now let’s talk about what the Restaurant did to breach its duty of ordinary care owed to the plaintiff-customer in this case.

What is the Breach by Legal Duty of the restaurant?

To prove an action for negligence, the plaintiff must establish the defendant breached its  legal duty. Nabors Drilling, U.S.A. Inc. v. Escoto, 288 S.W.3d. 401, 404 (Tex. 2009)  The question of whether the defendant acted with ordinary care is a question of fact for the jury. Caldwell v. Curoni, 125 S.W.3d 784, 793 (Tex. App.-Dallas 2004, pet denied)  When the negligent conduct is not within the common experience of a layperson, expert testimony must be used to establish the standard of care for that individual. J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 93 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); e.g. Wackenhut Corr. Corp. v. de la Rosa, 305 S.W.3d 594, 623 (Tex. App.-Corpus Christi 2009, no pet.)

In this case, as discussed above, the duty of ordinary care is used, meaning the server is supposed to do what a server of ordinary prudence would or would not have done under the same or similar circumstances. Arguably, the conduct of what the server should have done is  within the common of experience of a layperson. So we don’t necessarily have to use an expert to establish what the server or should not have done. However, I normally try to use experts to help me to establish what the server should have done, especially given the fact that it is a Restaurant. Nonetheless, the server breached it legal duty of using ordinary care because the server could have used due diligence in checking the ingredients of the dish to ensure that it did not contain shellfish as the plaintiff-customer requested. The server obviously did not. Additionally, the restaurant server served the customer a dish with shellfish after the plaintiff-customer put the server on alert that she has an allergy to shellfish and needed to ensure the dish did not contain such. Moreover, she asked them if the dish contained shellfish and they told it did not. Given all of the circumstances as explained above shows that Defendant did not use ordinary care and have breached their duty owed to the plaintiff-customer in this case.

Therefore, the second element is met and we can move on to discussing the proximate cause of the plaintiff customer’s injury.

Did the restaurant proximately caused the customer’s injury?

To prove an action for negligence, the plaintiff must establish the defendant’s breach of duty proximately caused the plaintiff’s injury. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). In this case, this simply means, that we must show that the Restaurant’s breach as discussed above proximately caused the plaintiff-customer to suffer the allergic reaction. In order to prove proximate cause, the plaintiff must met  two (2) elements. The components of proximate cause are (1) cause-in-fact and (2) foreseeability. Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). In a jury setting, this question is answered in the form of broad form question. It would look something like this, “Whether the Restaurant proximately caused the occurence in question.” As the attorney, we would have to provide a definition as what the term occurrence means. Defining what the occurrence is will identify the basis of the suit. So I would define occurrence as serving the dish with the ingredient contained shellfish giving rise to the customer’s injuries.

Cause in Fact

Now let’s discuss the legal jargon behind proving  causation from a legal standpoint. The first element cause in -fact or “but-for” causation is whether the the negligent act or omission was a substantial factor in bringing about injury and whether the injury would have occurred without the act or omission. Del Lago Partners v. Smith, 307 S.W.3d 762, 774 (Tex.2010) Cause in fact must be proved by evidence of probative force-either direct or circumstantial-and not by mere conjecture, guess, or speculation. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002).

In the case, arguably this is met because the  the dish which has the ingredient shellfish caused her allergic reaction. You can prove this by should that the dish contained the shellfish ingredient. You can obtain the restaurant’s ingredients of the dish through was we call discovery. This will be explained in another blog.  Additionally, the plaintiff’s medical records would show the nature and extent of the allergic reaction i.e. exposure to shellfish and the doctor can testify as what caused the allergic reaction i.e. exposure to shellfish. Also, the plaintiff can testify that she got sick immediately after the digesting the dish. Her testimony can describe all of her symptoms they are consistent with an allergic reaction to shellfish. It is easily linked to the restaurant because this is who served the dish which is easily proved by the receipt of purchase and the plaintiff customer’s testimony.

Therefore, the first element of cause, in fact, is met.


To prove the second element, foreseeability under proximate cause, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Boys Club, 907 S.W.2d at 478. Foreseeability does not require a person to foresee the particular accident or injury that occurs. Travis, 830 S.W.2d at 98. Foreseeability requires only that (1) the injury be of a general character that might reasonably have been anticipated and (2) the injured party be situated in relation to the wrongful act so that the injury to her or to someone similarly situated might reasonably have been foreseen. Nixon v. Mr. Prop. mgmt Co., 690 S.W.2d 546, 551 (Tex. 1985).

In this case, foreseeability is easily met. The injury, plaintiff’s allergic reaction to the dish,  is of a general character that might have been reasonably anticipated. This is reasonably anticipated because she told the server she was allergic to shellfish. Any server would have reasonably foreseen that given a dish to a person with the exact ingredient she put them on notice would suffer an allergic reaction. Thus, this is met. As for the second element, this is met because the plaintiff in this fact scenario is situated to the wrongful act. In this case, it is receiving the dish with the ingredient of shellfish from the server such that the allergic reaction might reasonably have been foreseen. Therefore, the second element is met.

Because both components are met in this case, Plaintiff has met the third element causation.Based upon the discussion above, the jury will  answer YES in the jury charge submitted and then determine the amount of damages to award to the plaintiff.

When all three elements are met, then plaintiff can move onto damages. With exception of the first element, duty, Determining whether or not plaintiff has met the other elements  is determined by the fact finder with the. Either the judge or jury can determine who can determine this. The plaintiff has a choice as to whether she wants a jury or judge. If its a jury as the fact finder, the jury would have to answer what’s called a jury charge which is a simple broad question asking whether all 3 elements are met. In this scenario, the fact finder would answer by writing either YES or NO the following question.

Now that we have discussed negligence, let’s move onto to an alternate theory I mentioned above which is called Texas Deceptive Trade Practices Act.

Analysis for DTPA Violations

The DTPA prohibits “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Tex. Bus. & Com.Code § 17.46(a). Section 17.46(b) is a laundry list of specifically prohibited acts. Section 17.50 provides the remedy for violations of the laundry-list provisions of 17.46(b) and for “any unconscionable action or course of action by any person. Actionable representations may be oral or written. Person means an individual, partnership, corporation, association, or other group, however organized. Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838 (Tex.App.-Amarillo 1993, writ denied). A party need not prove intent to make a misrepresentation under sections 17.46(b)(5) or 17.46(b)(7)—making the false representation is itself actionable. Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex.1980). Courts have recognized that “mere puffing” statements are not actionable under sections 17.46(b)(5) or 17.46(b)(7). Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980).  DTPA protects consumers. A consumer as defined under Business and Commerce Code  §17.45 as an individual, partnership, corporation, this states, or subdivision or agency of this states who seeks or acquires by purchase or lease any goods or services, except that the term does not include a business consumer that has assets of $25 million or more,  or that is owens or controlled by a corporation or entity with assets of $25 million or more.

To recover under the DTPA, the plaintiff must also show that the defendant’s actions were the “producing cause” of economic damages or damages for mental anguish. See Tex. Bus. & Com. Code § 17.50(a). This showing requires some evidence that the defendant’s act or omission was a cause in fact of the plaintiff’s injury. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). Under this standard, it is not necessary to show that the harm was foreseeable. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 481. Additionally, the act described above must have been relied on by a consumer to the consumers detriment.

In viewing the list of acts, there are a few that I would choose to apply in this fact scenario.   The false, misleading, or deceptive act or practice that I would choose to apply in this scenario includes but is not limited to the following acts:

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;

B& CC §17.46 (a)(b)(5)

(7) representing that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another;

B& CC §17.46 (a)(b)(7)

(24) failing to disclose information concerning good or services which was known at the time if such failure to disclose such information was intended to induce the consumers into a transaction into which the consumers would not have entered had the information been disclosed; B& CC §17.46 (a)(b)(24)

In this case, the plaintiff meets consumer element. Our entire fact scenario supports a finding that she  presented evidence of her a consumer. The consumer will testify that she purchased the food dish from the Restaurant. She can prove this by showing the receipt for the dish. . The dish  she purchased form the basis of her lawsuit because she suffered an allergic reaction for which she is seeking her economic damages. Therefore she is a consumer under B&BC §17.45 (5). Now we can move on to whether the Restaurant has committed any of the acts under our Business and Commerce Code.


B & CC§17.46 (a)(b)(5)

In our present scenario, there is evidence of misrepresentations about dish’s  characteristics, quality, and grade amounting to more than mere puffing. The server specifically told our consumer-plaintiff that the dish did not contain the ingredient of shellfish, when in fact it did.  Therefore, the server violated this provision.

B & CC §17.46 (a)(b)(7)

Using the same analysis as above, the server arguably violated this section as well because the she represented that the dish did not have shellfish in it when in fact it did. Therefore, the server violated this provision.

B & CC §17.46 (a)(b)(24)

As to this provision, this can proved because the server failed to disclose the information concerning the ingredients of the dish which was known at the time of the transaction. The failure to disclose this information was intended to induce the consumer because when she told the consumer it did not contain shellfish she purchased it.


In our present case, the customer can easily provide evidence linking the dish her injuries. She can present her testimony, her hospital records, and any other information showing that she was made sick from ingestion of the dish.  Thus, we conclude there exists evidence of producing cause.


In our present, the customer will likely argue that she relied on the server’s statement that the dish did not contain the ingredient when she ordered. This will go towards satisfying this element.


Additionally, 17.50 provides the consumer with relief to file a claim against a person for breach of an express or implied warranty and any unconscionable action or course of action by any person. Furthermore, TEX BC. CODE ANN. § 2.313 analogous to the U.C.C. statute provides a remedy for consumers for because of an express warranty.

It is your lawyer’s job, to issue spot your legal claims that would apply to your case as well as submit evidence on each of the above elements and well as submitting your evidence for damages such that the jury can reach a successful verdict on your behalf.

If you or someone you know have a food allergy claim and would like me to review, please call 1-855-GOT-INJURED or click here to complete the form for your case review.

Disclaimer: The information and materials provided in this video are for general informational purposes only and are not intended as legal advice. No attorney-client relationship is formed nor should any such relationship be implied. Nothing in this blog is intended to substitute for the advice of an attorney. If you need legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

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