Some people complain that our society has become too litigious in recent years, with people threatening suit for every little hurt, both real and imagined. However, there are others who live with potentially dangerous conditions that can be triggered by someone’s negligence. If this does occur, it is only right that the negligent person be held liable for any injuries they cause. Food allergies have become a very real concern for many families in the United States, becoming the leading cause of potentially deadly anaphylactic shock outside of hospitals according to the Centers for Disease Control and Prevention (CDC). If you or a loved one experiences harm due to an allergy, you have the right to bring suit.
Food Allergy Statistics
The Food Allergy Research & Education non-profit organization reports as many as two children in every classroom have potentially debilitating food allergies; such as peanuts, other legumes, dairy products and gluten. Allergies are also on the rise, with the CDC reporting a 50 percent increase between 1997 and 2011. However, the proverbial jury is still out as to why.
While naysayers may doubt the potential harm caused by allergies, the consequences can be severe. It is possible for anaphylaxis to occur without any kind of skin reaction, and thus can appear innocuous when symptoms like nausea, breathing difficulty and internal swelling may cause a real threat to the sufferer. Ninety percent of all food allergen reactions are caused by eight foods – milk, eggs, fish, shellfish, wheat, peanuts, tree nuts and soy – and even trace amounts can bring on severe distress. There is, however, no cure, so the best thing for patients to do is to avoid exposure to allergens as best the can, including warning those preparing their food.
Bringing A Negligence Suit
One of the most common causes of food allergy-related anaphylaxis is negligent preparation of food by restaurant or school staff. If this happens to you, you may have a personal injury case against the restaurant (and possibly its staff members) in negligence law. However, you must be able to prove that you advised the restaurant of your particular allergy; if you cannot, your case will likely be dismissed out of hand.
There is a reason for this. Negligence law in South Carolina has four parts, all of which must be shown to the satisfaction of the judge or jury trying the case. They are:
- The existence of a duty of care between plaintiff and defendant. The staff at a school or a public eating establishment have a duty to exercise reasonable care for their charges; that is, to ensure that no foreseeable harm comes to them
- The breach of that existing duty by a specific action on the part of the defendant
- The ability to show that the defendant’s action was the direct, foreseeable cause of the damages the plaintiff suffered
- Tangible harm to the plaintiff. It need not be physical; something like post-traumatic stress disorder (PTSD) would qualify. But it must be harm lasting more than hours or days
In this situation, if a diner did not, for example, inform the chef of the restaurant they were eating at that they had a food allergy, the chef would likely have no idea of that fact. Thus, any harm suffered by the diner would not be foreseeable, and the chef would not be liable.
A Personal Injury Attorney Can Help
While allergies may seem inconsequential, or inconvenient at best, they can still be very harmful if their effects are not properly treated. Having the experienced help of a competent attorney can help guide you through what can be a complex legal process. The dedicated North Charleston personal injury attorneys at Callihan & Syracuse take every case seriously and work hard to ensure that every client injured has the best chance possible to receive the compensation they need. Contact us today to discuss your options.