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Did you know that one out of every 25 Americans has a food allergy? In most of these situations, the ingredient triggers an anaphylactic reaction that may be life threatening. All together, these instances lead to roughly 1,500 deaths per year. Although people of all ages suffer from food allergies, children currently bear the brunt, with the condition appearing at birth or developing over time.
Over the past 20 years, greater awareness has been paid to food allergies. Particularly, such efforts in restaurants, school cafeterias, colleges, and workplaces emphasize the types of foods that can bring on such a reaction. Generally, these items include:
Upon being exposed – whether through accidental consumption or from touching the surface where an allergen sat – he or she may have to manage:
- Digestive issues
- Skin rashes, including hives
- Breathing problems
- Swelling in the face
- Difficulty swallowing
In the most extreme cases, death can occur unless treatment is administered quickly and accurately.
Allergic individuals find that some people and institutions fail to accommodate their conditions. In the most extreme and debilitating instances, allergies are considered disabilities under the Americans with Disabilities Act (ADA). A school may insist a student’s peanut allergy isn’t serious, a college dining hall may only prepare foods with gluten or a restaurant, upon ignoring a customer’s request, may fail to prevent cross-contamination. As a result, those recovering from a significant and life-threatening reaction have decided to file lawsuits against these parties.
Restaurants, Food Manufacturing, and Airlines
Since the seriousness of peanut allergies came to light, restaurants and food manufacturers have made an effort to label when peanuts and tree nuts are added as ingredients. Per the Food Allergen and Consumer Protection Act of 2004, any food containing a major allergen must be properly labeled. Restaurants often act in a similar manner by posting signs about nuts and other allergens being used in preparation.
Increased awareness has also led to procedures preventing cross-contamination. For instance, if a customer says he or she has a peanut allergy, the dish won’t be prepared in an area where this ingredient is stored or used. Also, waitstaff and chefs are expected to make accommodations upon hearing the customer’s request.
If they do not, the restaurant or chain can expect some backlash, as was the case for a Massachusetts-based Panera Bread franchise. In this case, parents had ordered grilled cheese for their daughter online. While they listed her peanut allergy twice on the form, the sandwich still had the triggering ingredient included. The girl, who had bit into the sandwich unsuspectingly, ended up having a delayed reaction, which only surfaced after emergency room treatment.
As this instance shows, not every restaurant is always prepared to handle a food allergy. Commonly, such lack of knowledge manifests as:
- Dismissal. Waitstaff and cooks may confuse or believe a life-threatening allergy is no different from food intolerance.
- Failing to provide workers with the correct training to prevent cross-contamination.
- Ignoring a patron’s warning about his or her allergy.
- Believing all responsibility for managing an allergy falls directly on the patron.
- Not listing all ingredients, including allergens, on the menu.
Even a warning might not be good enough, as passengers boarding certain flights find. Some airlines claim they cannot create nut-free zones, won’t let passengers board ahead of time to clean down the trays and seats, and state they won’t make requests to serve certain foods. As a result, an airline’s employees may threaten to or physically remove a passenger before the plane takes off. In response, individuals in this scenario have filed claims alleging discrimination against those with allergies.
Schools and Colleges
With schools and colleges, allergies often fall into the realm of providing disability accommodations. Such responses may entail offering a peanut-free place to eat, making sure classroom parties are free of allergens, and ensuring on-campus food service considers this group of students.
Colleges should navigate the latter issue when requiring students to purchase an on-campus meal plan. In one prominent instance, Lesley University in Cambridge, Mass., required all students to purchase meal plans, yet provided no gluten-free options for those with Celiac disease and wheat allergies. In the settlement, the college agreed to include these choices and make sure preparation and serving avoided cross-contamination.
However, not all institutions are as accommodating or understanding. In one 2014 Tennessee case concerning an elementary school, parents requested a peanut-free cafeteria table for all students with these allergies and passed out information about their child’s condition. The school pushed back, contacting child protective services to claim Munchausen Syndrome by Proxy – a mental health condition in which a caregiver makes up an illness.
In another instance, parents at Livonia Public Schools in Michigan claimed teachers publicly identified and intentionally singled out their child, who suffered from a peanut allergy. They alleged such behavior opened up their child to bullying and harassment from other students and violated the ADA.
Filing a Lawsuit
When it comes to filing a food allergy lawsuit, context makes the case. When evaluating your claim, an attorney may ask about:
- Your interactions at a restaurant. Did you inform your server of your allergy, only to have the chef put your ingredient in or cross-contaminate your food? Because you’re essentially engaging in a contract with the restaurant, such cases may be considered a “breach of warranty.”
- The food you ate, if you purchased it from a store. Was the ingredient included on the label or was a warning about its preparation added? Was the allergen clearly present in the food?
- If you ate food at a restaurant, did the menu clearly disclose the ingredients or have potential allergens labeled?
- How the food affected you. If the reaction wasn’t severe and life-threatening or required a single doctor’s visit, you may not have as strong of a case. On the other hand, some allergic reactions result in days of medical treatment and extensive care, potentially changing the plaintiff’s quality of life. This latter instance may further impact you financially, from medical bills to limited job opportunities.
Increased awareness to food allergies may place a claim in the plaintiff’s favor, but a few more factors come into play:
- Common sense: Some people believe that an individual with a food allergy is fully responsible for his or her condition. As such, expect to be questioned about your food and dining decisions. Although certain situations are less obvious, such as cross-contaminated utensils in a restaurant, an individual with an egg or wheat allergy who eats a piece of cake may be expected by some to “know better.”
- Loopholes: Most states have no laws concerning how restaurants, cafeterias and food stores handle individuals with food allergies. As a result, such businesses are not obligated to warn you of an allergen’s presence.
Simply enjoying a meal, only to go into anaphylactic shock, physically and mentally transforms an individual. If you told a server or school official about your condition, but your request was disregarded, it’s time to hold these parties responsible for negligence. Bring your personal injury or product liability claim to the lawyers at Trantolo & Trantolo. To learn more, give us a call today.