How Do I File a Food Poisoning Lawsuit?

Each jurisdiction has its own rules for how a food poisoning lawsuit must be filed, but the process generally includes gathering evidence, collecting witness statements and serving the person or establishment that poisoned you with a formal complaint. Food poisoning can be difficult to prove, which makes careful preparation of your lawsuit essential. Simply feeling sick after eating is not enough in most cases. You will need to supply the court with objective evidence to prove that you were, in fact, poisoned, and you typically must give the defendant a clear sense of where you are alleging that they went wrong.

For a food poisoning claim to be actionable — that is, for the court to find your allegations worthy of trial — it must be supported by facts. Collecting these facts is the first step in filing a food poisoning lawsuit. It is essential that you promptly report food poisoning after it happens so that a record is created. You will need a witness statement from your doctor and preferably samples of either the food that you ate or your mouth cultures after you became sick. These samples, when tested, will show definitively whether the food was actually harmful.

Cases of food poisoning are treated as torts in nearly all jurisdictions. The elements of an actionable tort claim vary somewhat from place to place, but they almost always include some element of negligence. If you can prove that food you ate was tainted, negligence attaches almost automatically. Unless the poisoning was well beyond the server or food manufacturer's control, or unless you played a contributory role, negligence usually can be imputed.

The next thing that you will need to do is determine who you are suing. Filing a food poisoning lawsuit against the cook who was personally responsible for the poisoning might be an option, but it is rarely the best one. Most of the time, cooks and restaurant employees are but agents of a larger restaurant or food service corporation. Suing the organization at the top, whether it is a restaurant, commercial kitchen or food manufacturer, provides greater access to resources and makes it more likely that your claim will get the attention it deserves. If other people were poisoned under similar circumstances, you might be able to form a class action lawsuit at this stage as well.

Spend some time researching your jurisdiction’s rules for writing complaints. Most of the time, complaints must contain a brief statement of facts as well as pointed counts that outline each cause of action. You usually must include a “prayer for relief” that sets out the remedy you want — usually money or other compensation.

It is important that you are careful to justify each count in your food poisoning lawsuit with established law, or it is likely to be dismissed as ungrounded. When you are suing a restaurant or commercial food company, it usually is a good bet that a corporate lawyer will review your complaint for the defendant. As such, it is often wise for you to retain a lawyer who is experienced in cases involving food poisoning from a restaurant, packaged food products or tainted groceries — whichever the case might be — to shepherd you through the process.

After your food poisoning lawsuit is drafted, you will need to serve one copy on your chosen defendant and file an identical copy with a court in the jurisdiction where the poisoning occurred. Service can be by mail or in person, depending on local rules. Some jurisdictions prohibit parties to a lawsuit to serve each other, which might mean that you need to hire someone to serve your complaint for you. A food poisoning lawyer typically will include this service as part of the representation package.