Can I Sue for Injury Due to an Allergic Reaction?

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By Ephrat Livni, Esq. on May 02, 2016 6:59 AM

This is not a safe world, especially if you are allergic to things in it. You can't always find someone to blame for your pain. But sometimes you can do exactly that -- if another person or entity acted negligently then you can certainly sue from an injury associated with an allergy to a product. Just as in any other negligence claim, you will have to prove all of the elements, and an allergic reaction alone won't suffice. Let's look at allergic reactions and negligence.

Failure to Warn

No one is actually liable for your allergies. But with so much attention given to food allergies in particular lately there is a lot more awareness of the prevalence of allergies in people. Still, food and other products do not have to all be hypo-allergenic as a result.

But what does have to happen is that food producers do have a duty to warn customers about allergens. The Food Allergen and Consumer Protection Act of 2004 ensures that food that contains "a major food allergen" -- such as peanuts -- must clearly declare its presence. Cosmetics and other manufacturers also have allergen labeling requirements.

Some states require restaurants to do the same, or even put the responsibility on allergic customers to warn the chef, which makes sense. In Massachusetts, for example, the restaurant menus all state, "Before placing your order, please inform your server if a person in your party has a food allergy." Restaurants there must also have at least one certified food protection manager who has undergone the state's allergen awareness training.

Negligence

Negligence occurs when someone with a duty owed to another breaches that duty and causes the other harm. So, using the above example of restaurants in states that must warn of allergens, let's look at how a negligence claim might go.

Restaurants that have a duty to warn of allergen presence and fail to do so could get sued if someone with a severe nut allergy ends up in the hospital because no one mentioned the pistachios in the pie before the item was ordered. In that situation the restaurant breached its duty to warn, the breach caused an injury, the injury was foreseeable and the harm can be quantified and compensated. Chances are good then that under these facts you could recover for an allergic reaction.

But if you're in Massachusetts, say, and you order the pie with the nuts without warning the server that you're allergic, then you too have breached your duty of care to the restaurant and now recovery is not as obvious.

Talk to a Lawyer

If you were injured due to an allergic reaction to a food or product, talk to a lawyer. Many personal injury attorneys consult for free or a minimal fee and will be happy to assess your case.

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