Understanding the law surrounding foodborne illness is an important step in helping establish your risk and your position under the law. Foodborne illness lawsuits are on the rise, and settlements continue to increase.
A widespread outbreak of foodborne illness is a public health crisis. When government authorities implicate a food service operation as the cause of the outbreak, it is a crisis with implications both legal and commercial.
Breaking the law is clearly a risk, but the bigger risk is any injury or loss of life sustained by your customer. Virtually all those who prepare food do so within the parameters of the law. The industry's Plan Review process assures the basics of facility compliance. Unfortunately, many operators stop there.
While most operators understand that an outbreak of foodborne illness makes for bad publicity and it is therefore bad for business, few fully understand the legal standard that will determine their liability to the people injured as part of the outbreak. Indeed many operators assume that so long as the operation was state of the art, and that they did nothing wrong, there is no risk of lawsuits. They also assume that if the problem that gave rise to the outbreak had not yet been discovered, the restaurant operation cannot be held responsible. Both of theses assumptions are wrong.
Doctrines of strict liability and constructive knowledge hold that a restaurant operation is liable regardless of fault or actual knowledge.