Do I have a food poisoning claim?

Food poisoning such as the recent listeria outbreak, generally involve defective product liability claims. The food is the defective product, such as cantaloupe infected with listeria, which has injured you.

No one should contemplate the investment time and resources required to pursue a lawsuit for two days of upset stomach or intestinal distress with no permanent harm. Even if you were inclined to pursue such a case, the costs of litigation would likely far exceed the damages likely to be awarded.

What makes the food poisoning case unique?

There are various legal theories in food poisoning cases, and the specific facts of your case will determine which apply. Claims may potentially be brought against the producer, a grocery store, a restaurant, or any other entity involved in the supply chain. The most common legal theories in these cases are:

Strict product liability

Many states, including Colorado, have strict product liability statutes. Such statutes relieve you of the burden of showing that the grower or supplier of a contaminated food product was not sufficiently careful in providing or distributing that product. Instead, you need only to show that the food you ate was contaminated with the bacteria strain associated with the outbreak, and that the contamination caused your illness. Colorado’s statute can be found at Colo. Rev. Stat. § 13-21-401 et. seq.


You may also be able to argue that the defendants negligently manufactured or supplied the contaminated food that made you sick. In order to prove negligence, you must show that the defendants were not reasonably careful in growing or distributing the contaminated cantaloupe that made you sick.


Breach of warranties

Most states, including Colorado, have imposed minimum standards for consumer products. Such laws are called “implied warranties.” For food products, it is typically an implied warranty of fitness for human consumption. The listeria contamination of the cantaloupe in your case may constitute a violation of an implied warranty. The contamination may also constitute a violation of any express guarantees supplied by the food processor, commonly printed on the products packaging. Colorado’s implied warranty statute is at Colo. Rev. Stat. § 2-3-314.


State and federal governments can also provide you with potential in a food-borne illness claim. One example is the Federal Food, Drug, and Cosmetics Act, which provides a cause of action when a food contains “any poisonous or deleterious substance which may render it injurious to health.” Similarly, Colorado law prohibits the manufacture, sale, or delivery of a food that “bears or contains any added poisonous or added deleterious substance which is unsafe,” unless the amount of the substance is too miniscule to ordinarily cause harm.

What to expect from a food poison lawsuit

For food poison victims with compromised immune responses, the harm can be catastrophic, even fatal. For those cases, victims may suffer months of lost income, permanent nerve or muscle damage, and large medical bills. For the families who have lost a loved one from listeria infection, a wrongful death claim may be the only option for compensation.
You should seek compensation for economic losses such as medical expenses (including those paid by your medical insurance provider) and loss wages for both the past and future.  These are typically expenses easily supported by documents, such as payroll stubs and medical bills.  More challenging are the losses for which there are no hard measure – a permanently impaired body or the diminished ability to enjoy life are losses that also deserve valuation.  Both the economic losses and the non-economic injuries are legitimate elements of the damages for which you deserve compensation. Read more about damages.

For answers about your food poisoning claim, call for a free consultation

Consulting with economic impact analysts, medical specialists, and food safety professionals, we calculate what your negligent care means in terms of medical bills, lost wages, adverse living conditions, and psychological trauma.  We make it a point to answer all the questions of our clients, and we address each concern in a professional and compassionate manner. Contact an experienced lawyer at our office today to discuss your food poisoning case.