Global Journal of Social Sciences Studies

Volume 3, Number 2 (2017) pp 63-100 doi 10.20448/807.3.2.63.100 | Research Articles

 

Restaurant Liability for Contaminated Food and Beverages Pursuant to Negligence, Warranty, and Strict Liability Laws

Frank J. Cavico 1Bahaudin G. Mujtaba 2Stephen Muffler 3Marissa Samuel 4Nicolas- Michel Polito 5
1 Professor of Business Law and Ethics The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
2 Professor of Management The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
3 Attorney At Law Adjunct Professor of Business Law and Ethics The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
4 Attorney At Law Part-Time Professor of Management The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
5 The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, MBA. 2016 School of Business Fairleigh Dickenson University Master of Accounting, 2018 (expected), USA

ABSTRACT

Managers, owners and employees of all food providers must make sure that their products are safe, wholesome, and unadulterated prior to selling them. They must all be experts in making, storing, selling, preparing, and serving food. Otherwise, they could hurt consumers and face lawsuits since foodborne illnesses are a serious problem in the United States and around the world. Each year, about 48 million people in the United States suffer from foodborne illnesses that are linked to Salmonella, Norovirus, Listeria, and E. coli. This article examines three legal liability theories of negligence, warranty, and strict liability that are linked to contaminated food and beverages provided by restaurants. The authors end with recommendations to restaurant owners, employers, and managers on how to avoid liability by going above and beyond the law to provide quality food and beverages.

Keywords: Restaurant, Contamination, Negligence, Warranty, Strict liability.

DOI: 10.20448/807.3.2.63.100

Citation Frank J. Cavico; Bahaudin G. Mujtaba; Stephen Muffler; Marissa Samuel; Nicolas- Michel Polito (2017). Restaurant Liability for Contaminated Food and Beverages Pursuant to Negligence, Warranty, and Strict Liability Laws. Global Journal of Social Sciences Studies, 3(2): 63-100.

Copyright: This work is licensed under a Creative Commons Attribution 3.0 License

Funding : This study received no specific financial support.

Competing Interests: The authors declare that they have no competing interests.

History : Received: 11 April 2017 Revised: 17 August 2017/ Accepted: 22 August 2017/ Published: 30 August 2017

Publisher: Online Science Publishing

1. INTRODUCTION

In the modern world, foodborne illnesses are a serious problem in the United States as it hurts consumers, brands, and keeps medical facilities tied up with the treatment of unnecessary illnesses. Cogan (2016) using data from the Centers of Disease Control and Prevention, reports that one in six people in the U.S., approximately 48 million, suffer from foodborne illnesses annually, which are principally caused by Salmonella, Norovirus, Listeria, and Escherichia coli (E. Coli). Moreover, annually, 128,000 people require hospitalization and 3000 die from foodborne illnesses (Cogan, 2016). What legal redress do these harmed consumers have? That question is the essence of this article. The issue of the legal liability for contaminated food is even more pronounced today because many supermarkets and grocers are now engaging in much more take-out food business; and, moreover, the food meals and items involved are a lot more sophisticated and complex than past offerings. The Wall Street Journal (Newman, 2016) pointed out three recent contamination examples: Whole Foods Market, Inc. was ordered by the Food and Drug Administration (FDA) to commercially close one of its commercial kitchens that produced fresh meals for stores due to concerns about safety lapses in a Boston-area facility which resulted in a listeria outbreak; also in 2016, an E-coli outbreak that sickened 19 people that was linked to rotisserie chicken salad that was made at Costco Wholesale Corp.; and deli foods from the Boise Co-Op, a natural foods grocer in Idaho, were tied to a salmonella outbreak in 2015 that made almost 300 people sick. The Wall Street Journal (Newman, 2016) further reported that the U.S. Centers for Disease Control and Prevention indicated that food contamination outbreaks doubled from 2014 to 2015, where in that latter year 23 outbreaks occurred, 572 people were sickened, and 42 people were hospitalized. Salmonella was the most frequent outbreak linked to stores, followed by the norovirus (Newman, 2016). Nevertheless, freshly prepared meals are plainly now “big business.” The Wall Street Journal (Newman, 2016) reported that in 2005 freshly-prepared foods generated $15 billion in sales, but that amount nearly doubled to approximately $28 billion in 2015. Fortune (Kell, 2016) recently profiled one of these new companies called Blue Apron, which bills itself as a “meal-kit-delivery startup” company, selling meal kits (recipes and ingredients) using an “eclectic mix” of “precise” oils, spices, proteins and farm-fresh foods as well as other ingredients (Kell, 2016). One meal example is a summer green salad with green beans and carrots, grilled barramundi on top of an heirloom-tomato salad with smashed crispy fingerling potatoes. The company is just four years old and is valued at $2 billion with 4000 employees, selling 8 million meal kits a month, which cost $9.99 per person or $8.74 each for a family plan, excluding delivery costs (Kell, 2016). Furthermore, as reported in the Wall Street Journal (Haddon and Nassauer, 2016) Amazon.com, has developed an e-commerce fresh food business, called Amazon Fresh, which is aggressively competing with traditional grocers and other online food merchants. In 2014, the Wall Street Journal (Haddon and Nassauer, 2016) reported that Amazon and other online food merchants achieved $6.3 billion in sales, which amount was up 20% from 2013.

When it comes to the safety of food items and ingredients, regardless of how or where purchased, the consumer is in a decidedly disadvantageous position when it comes to information. Cogan (2016) explains:

Consumers are burdened by significant informational asymmetries with respect to the food they eat. Possessing less information than farmers, processors, transporters, retailers and others who grow, handle, prepare, and sell food, consumers cannot fully discern risky food from safe food. Was the food dropped on the floor? Was it exposed to contaminants and pathogens? Consumers almost never know. Furthermore, the nature of foodborne illness creates its own information problems. The period of time between infection by a pathogen and the onset of symptoms is variable. Some foodborne illnesses take a few hours to develop, while others can take a week or more. This not only makes it harder for victims of foodborne illness to link their sickness to a particular food, but the passage of time increases the likelihood that evidence of the contaminated food (i.e., the leftovers) will be unavailable for testing – thereby severing the empirical connection between the illness and its food source (pp. 1501-1502).

Yet despite the aforementioned informational and practical problems, the consumer harmed by unsafe food or beverage products does have certain legal avenues to pursue to achieve redress. This article will examine three legal doctrines that the injured consumer can use to sue restaurants as well as other parties on the food chain, to wit: the common law tort of negligence, warranty law based on statutory law in the Uniform Commercial Code, and the common law tort of strict liability. The article, after this introduction section and brief definitions and limitations sections, provides a legal overview of these three legal doctrines wherein basic principles and elements are set forth and illustrated. The article then examines the three main legal areas in the context of recent food and beverage case law involving restaurants. Recent court cases are examined in depth. Next, based on the legal analysis, the knowledge and experience of the authors, as well as insight gained from legal and management commentary, the authors discuss the implications of food and beverage liability for employers and managers in the restaurant business. Then, premised on the legal analysis and discussion of liability implications the authors provide certain recommendations to restaurant owners, employers, and managers on how to avoid liability. The article ends with a brief summary.

2. DEFINITIONS OF KEY TERMS

Food contamination or contaminated food is the presence in food of harmful, unpalatable, or otherwise foreign substances, for example, microorganisms, diluents, dirt, dust, chemicals, toxic substances, microbes, and/or organisms, before, during, or after processing or storage, which can cause consumer illness (Encyclopedia of Medical Concepts, 2016; Wikipedia Food Contaminant, 2016). Adulterated food, generally, is food that is not pure, safe, or wholesome because it contains poisonous or deleterious substances or contains foreign matter or filth or food that is otherwise contaminated, and thus the food is injurious to health (Wikipedia, 2016). Note that the federal government in the Food, Drug, and Cosmetic Act and the Federal Meat Inspection and the Poultry Products Inspection Act has other detailed and technical standards of what makes food “adulterated,” including impermissible and permissible pathogens (that is, microorganisms such as bacteria) in certain types of food (U.S. Legal – Legal Definitions, 2016; Wikipedia Food Contaminant, 2016) but such a scientific micro-biological examination is beyond the scope of this article. Finally, foodborne illness, also known as foodborne disease or food poisoning, is any illness resulting from contaminated food (Wikipedia, 2016). States also have food adulteration statutes (Cousineau, 2010) but such an examination is also beyond the purview of this article.

3. LIMITATIONS

This article has certain limitations. First, the article primarily deals with the three conventional legal doctrines as designated in the title and briefly addressed in the introduction, all of which are based on state law. Negligence and strict liability are, as noted torts, based on the common law of the states; and warranty law is based on the Uniform Commercial Code, which is a form state statutory law. Accordingly, the areas of the law examined herein are highly dependent on the law of the several states, which of course can vary; and, moreover, there actually may be contractions in interpretation on the appellate level in the states, which ultimately the Supreme Court of the state will have to resolve. So, for a particular lawsuit reference must be made to the law of the state having jurisdiction or if a federal “diversity” case (that is, the parties are from different states and the case is heard in federal court) to the law of the state where the injury or harm occurred (Cavico and Mujtaba, 2014).There is also a vast array of detailed federal law dealing with food safety, most prominently regulatory law emanating from the federal Food and Drug Administration, especially since the agency was further empowered to regulate by the the Food Safety Modernization Act of 2011 which aims to prevent food contamination. These regulatory rules will not be extensively covered; however, a failure to comply with government statutory or regulatory standards does impact negligence liability, as will be seen and explained. Secondly, the article only deals with food and beverages that are contaminated in the traditional sense of being unwholesome or having foreign objects therein.

Accordingly, the article will not extensively examine the growing area of the law dealing with the legal liability when food or beverages lack “warnings” as to calorie counts, fats, cholesterol, and sugar, among other perceived harmful substances. Similarly, the authors will not extensively cover the area of law dealing with the alleged “defectiveness” of food or beverages because they were not designed better to be more healthful. The authors will mention these areas, but save the health “warnings” (or lack thereof) and “design defects” aspect of food and beverage law for other future academic efforts. As per the title of this article the focal point is the liability of restaurants. The legal liability of food manufacturers, supermarkets, and grocers will be covered in future articles by the authors, though some mention of the liability of these other parties on the food chain will be made in the article. Finally, this article will not deal with the liability of the cruise lines since that examination would be in the very specialized areas of admiralty law and international treaties.

5. PREEMPTION BY STATUTE

Preemption is a legal doctrine that holds that when a federal law occupies a regulatory field by means of extensive and pervasive regulation Congress, in effect, has “spoken” on the matter, and thus the federal law supersedes any conflicting state law (Cavico and Mujtaba, 2014; Mortazavi, 2016). Accordingly, Benton (2012-2013) argues that one way to improve food safety would be to allow the Food Safety Modernization Act to preempt state regulations and state laws regarding food safety, which presumably would include state common law lawsuits for negligence and strict liability as well as state statutory warranty law pursuant to the Uniform Commercial Code. Such a preemption policy, Benton (2012-2013) argues, “could promote economic interests by keeping food manufacturing costs low and thereby allowing consumers to continue purchasing affordable food products.”

In conclusion, the legal analysis provided by the authors first explained and illustrated the basic principles underlying the three main legal theories – negligence, warranty, and strict liability – used by injured consumers to bring lawsuits against restaurants for contaminated and unwholesome food and beverage products. Then the authors presented and explicated recent case law decisions against the aforementioned entities based on the three legal theories. However, it needs to be pointed out the courts seem to use the terms “merchantable,” “wholesomeness,” and “fitness” interchangeably; and, moreover, as noted, a “reasonable consumer expectations” test arises in Section 402A the Restatement (Second) of Torts and thus finds its way into strict liability law as well as warranty law, all of which adds to the confusion in this area of food and beverage liability law (Getz, 1994). In the next section of the article the authors will discuss the implications of this legal environment and the preceding legal analysis, first generally and then in the context of the three legal theories.

6. IMPLICATIONS FOR EMPLOYERS AND MANAGEMENT

A. Generally

Today, supermarkets and grocers as well as traditional restaurants are now competing for consumers who want freshly-prepared meals as opposed to conventional “home-cooking” or even standard restaurant meals. The result has been an increase in the amount of these “fresh” offerings as well as their complexity. These more complicated meals require more specialized cooking and serving practices. Consequently, supermarkets, grocers, and restaurants now must deal with heightened food safety issues as the first two entities are now acting like mini-restaurants and the traditional restaurants are now doing much more take-out business. Let us discuss the implications of the legal analysis for employers and managers in the frame of the three major legal theories adduced herein.

First and foremost, one must be aware that restaurants and other entities on the food chain are not guarantors or insurers. That is, the injured must be able to utilize and support from legal, evidentiary, and proof and persuasion grounds one of the three legal theories discussed herein or other legal avenues to obtain redress. For example, pursuant to negligence law “merely” ordinary care and prudence are required. And although there are beneficial legal doctrines, such as res ipsa loquitur and negligence per se, and although strict liability is “strict,” the consumer, regardless of the legal theory being employed, still must be able to demonstrate that his or her foodborne illness was caused by the unwholesome food or beverage. The mere fact of eating certain food or consuming a certain beverage and then getting ill is insufficient; rather, causation–factual and proximate–is required.

B. Pursuant to Negligence Law and Practice

First to be discussed are the implications that arise from negligence law. Pursuant to negligence principles a seller or provider of food has a duty to act as a reasonably prudent person knowledgeable and skilled in the culinary arts and sciences of food selection, storage, preparation, and cooking, including the detection and removal of harmful substances from the food. Knowledge of government safety standards is essential since failure to comply with government standards is evidence of negligence. The Wall Street Journal (Newman, 2016) provided two examples of cooking safety standards to illustrate the complexity of this area: first, chicken prepared for a chicken biryani dish on a hot buffet must be cooked at least 165 degrees for a minimum of 15 seconds, then “cooled” two hours to 70 degrees in order to prevent bacteria, like salmonella, for occurring; and second, rice prepared for a cold Mediterranean pilaf salad must be cooked to 135 degrees, then “cooled” for two hours to 70 degrees, and chilled for an additional four hours at 41 degrees in order to prevent spores from growing and thereby contaminating the food. Another example involves oysters, where temperature control is critical. In order to prevent the fast-growing Vibrio vulnificus bacteria from contaminating the oysters they must be cooled within two hours after being taken out of the water to bring their internal temperature down to 55 degrees (Kestin, 2016). Consequently, the failure of an entity on the food marketing chain to comply with industry, government, or its own standards of manufacture, storage, handling, preparation, and serving of food or beverages is evidence of negligence. Causation, both factual and proximate, is a required element to a negligence claim (as well as warranty and strict liability). Yet demonstrating causation likely will be a challenge for the injured consumer, especially in foodborne illness claims. Cogan (2016) explains the problem, to wit: “…The victim cannot connect the foodborne illness with a particular source, he or she suspects a particular food source but no longer possesses the evidence (i.e., the food is gone and there are no leftovers), no lab tests were conducted to confirm the presence of foodborne pathogen, or the victim simply cannot remember what he or she ate.” The source problem is particularly acute when it comes to foodborne illnesses caused by oysters as it is very difficult to tell where the oysters come from and thus who is accountable. As such, there are uncertainties as to where the oysters are harvested, including perhaps closed and prohibited areas; restaurants serve oysters purchased from multiple dealers; mislabeling and relabeling by dealers occurs despite FDA regulations, inspections, and fines; Gulf oysters are substituted for Northeast oysters because the former are cheaper; and “it’s not uncommon for oysters to go through two or more dealers before being sold to a restaurant” (Kestin, 2016). The doctrine of res ipsa loquitur was created to benefit injured plaintiffs who could not obtain direct evidence of a lack of due care to satisfy the breach of duty element of a negligence lawsuit. However, Benton (2012-2013) emphasizes that the burden of proof for an injured plaintiff is a “heavy one” in a food situation under res ipsa loquitur.

Benton (2012-2013) lists several reasons, to wit: 1) Proving that the food became adulterated and contaminated while under the defendant’s control is a difficult task “…since the food industry is large and complex, and a product can pass through the hands of many different people or companies before reaching the grocery stores or restaurants.” 2) A person with preexisting illnesses, for example, a stomach disorder, would have to show by means of expert medical witness testimony that his or her particular illness resulted from the defendant’s food or beverage product and not any other existing medical illness. 3) For a plaintiff who has eaten previous meals the burden will seem “overwhelming” because “…he must also prove that everything else he ate on the same day he consumed the manufacturer’s product, or even the same week, did not cause his illness. Accepting the assumption that an average person eats at least three times a day over a seven-day period, there could be at least twenty meals, not counting the manufacturer’s product, which the plaintiff faces the challenge of disqualifying as the cause of his illness.” 4) Another variable which compounds the problem for the plaintiff is “…whether there is any possibility another agent might have caused the contamination before the product reached the plaintiff, or whether the plaintiff caused the illness through his own negligent preparation or even storage of a product.” 5) Finally, the food system in the U.S. is “complex,” meaning that “by the time a food product has reached the supermarket it has traveled countless miles and been handled by several players, from distributors to brokers. Any one of these players might have acted negligently and caused the plaintiff’s illness, rather than the manufacturer.” Cogan (2016) agrees:

Undoubtedly, our highly complex food chain contributes to the problem. Foodborne pathogens can infect food at any point in the production and distribution process. Contamination can occur at a farm, during transport, at a processing plant, in a restaurant, in a supermarket, or even in our own homes. Industrialized food production, long supply chains, and market pressures to reduce food production costs all increase the risk of contamination by foodborne pathogens. As food processing or shipping systems have continually grown larger and more efficient, foodborne illnesses have become a national problem (pp. 1504-1505). Therefore, Benton (2012-2013) concludes as follows: “Thus, while res ipsa loquitur may seem to be a viable tool for plaintiffs who would bring a claim against a food manufacturer whose product they suspect made them sick…courts apply a very stringent set of rules that make it difficult for plaintiffs to succeed.”

C. Pursuant to Warranty Law and Practice

The second series of implications are those derived from warranty law. The trend in the jurisdictions away from the traditional “foreign/natural” test to determine whether food/beverages are “fit for human consumption” under the UCC to the “reasonable expectations” test gives the injured consumer more leeway in bringing a lawsuit as well as affording a jury (perhaps sympathetic to the injured consumer) the power to answer the “reasonableness” of the consumer’s expectations. A consumer would no longer be under some type of duty of care to break apart food, inspect it, seek out and hunt foreign objects, or cut, slice, or pick at food with a knife or fork that was meant to be eaten out of hand. As per the aforementioned decision in Goodman v. Wenco Foods Inc. (1992) a consumer would not reasonably expect to find a bone fragment in a hamburger purchased at a fast-food restaurant. Eller (1993) criticizes the foreign/natural test as being “arbitrary and capricious” and applauds jurisdictions that have adopted the “more principled approach” of “reasonable expectations.” The key, therefore, is simply what the “reasonable” consumer would expect in his or her food or beverage.

D. Pursuant to Strict Liability Law and Practice

The third major part to discussion of implications deals with the tort of strict liability.  Generally, a food strict liability claim would consist of the following elements: 1) the food is in some way “defective” and thus is unreasonably dangerous to the consumer; 2) the food is expected to and in fact does reach the consumer without any substantial change in its condition; 3) the food caused (factually and proximately) the consumer’s illness or injury; 4) the defendant was the “seller” (i.e., on the food-chain); and 5) the consumer sustained damages (Lipp and Hafer, 2014). A product is defective if it is “flawed.” As noted, the manufacturer must adhere to its own rules and standards. As such, as Benton (2012-2013) points out: “Thus, there is an incentive for food manufacturers to remain in compliance with their own established standards. Such standards must be reported to the FDA and updated every three years under the FSMA anyway.”

Regarding the failure to warn component to strict liability in tort if there is a lack of a warning or an adequate warning (or labels, branding, or instructions) that indicated that the food or beverage product was unsafe or dangerous tort liability of the manufacturer (or any entity on the food marketing chain) could ensue. Lipp and Hafer (2014) in examining Colorado law, provide the example of a required warning when there is an unknown ingredient that can cause harm, for example, that the dye applied to the skin of oranges contains a well-known allergen. However, as emphasized, warnings are required only when it would be reasonable to do so; and thus there is no liability for failure to warn of widely known risks based on Colorado law, for example, that some consumers may be allergic to strawberries, or that the excessive consumption of alcoholic beverages can be injurious to one’s health and safety (Lipp and Hafer, 2014). The Supreme Court of Illinois especially advises that warnings would be most appropriate in a jurisdiction that uses a “reasonable expectations” standard for liability, for example, by warning that pecan shells could be found in chocolate-covered pecan candy (Jackson v. Nestle-Beich Inc., 1992). Nevertheless, Benton (2012-2013) foresees a major practical and legal problem with the utilization of this theory as a means of recovery for the injured consumer, to wit:

The plaintiff would have to prove that a reasonable person in the manufacturer’s position would have provided a warning about the product. However, food manufacturers are not likely to place a product on the market they believe will cause a food-borne illness, and products such as fruits, vegetables, and nuts do not easily lend themselves to the ready discovery of whether they are adulterated in the same way that alcohol is known to be dangerous. In addition, food manufacturers are highly unlikely to put a warning label on such products because such a label would be off-putting to consumers. Consumers want to feel confident when they bit into an apple that it is completely safe. Consumers cannot do this with the thought of a warning label in the back of their mind that they might become sick later. If this were the case, they would likely not buy the product (pp. 46-47).

As to the design defect aspect to this tort, it appears that it is going to be challenging to demonstrate that food and beverages are defectively designed so that they are unreasonably dangerous to the consumer. Yet can food and beverages be made healthier? The answer is likely “yes”? But are food and beverages defectively designed products because they could be made more healthful? The answer is likely “no” due to the requirements for design defect liability under strict liability. In particular, defining what types of food and beverages are healthy or unhealthy or stating which types could be made more healthful is an exceedingly difficult task indeed (Campos, 2015). What are the alternative ingredients to food and beverages? Are they safer alternatives? Benton (2012-2013) adds that “in the case of foods (excluding meat and poultry), there is only one way to grow them, i.e., farming.” Moreover, Campos (2015) warns that “nutrition science is beset by contradiction, uncertainty, and complexity. Under the circumstances, the tendency of public health authorities to divide food into ‘good’ and ‘bad’ categories, and to prescribe homogeneous dietary patterns to heterogeneous populations, is an example of both intellectual hubris and overweening public policy.”

7. RECOMMENDATIONS FOR EMPLOYERS AND MANAGERS

Contaminated food that makes the consumer ill can make restauranteurs and the other entities on the food chain “sick” as well. Restaurants and food businesses as well as their shareholders, employees, and other stakeholders know full well that the slightest outbreak of a foodborne illness can seriously damage the reputation of a food business and consequently result in severe financial harm. Accordingly, based on the discussion of the implications of the preceding legal analysis, the authors’ own knowledge and experience, as well as legal and management commentary, we offer the following suggestions to employers and managers to avoid liability. First, the authors would like to stress one very basic and very important recommendation – Wash Your Hands with soap and hot water for about 12-15 seconds (Mujtaba, 2014). Obviously, restaurant employees and others working with food must be told in strongly, clearly, and regularly to wash their hands while working with and handling food and beverage items. Certain food items also must be rinsed thoroughly, for example, lettuce. Another very basic recommendation is that when dealing with food to cover one’s hair, this includes managers and owners (Mujtaba and Johnson, 2016). In addition to improper hygiene by food handlers, managers must be aware of the main causes of foodborne diseases – improper storage, improper cooking and preparation, especially not heating or refrigerating food properly, cross-contamination, and otherwise inadequate handling of food and its ingredients (Cogan, 2016). Mishandling food preparation and service is another major area of concern. Many forms of food contamination, especially if caused by bacteria, can be prevented by the proper cooking of food, eating it promptly, or properly refrigerating the food. Thus, another strong suggestion would be for restaurants and other food entities to engage in training of employees as to the current food safety standards for storage, preparation, and serving. Online training is available, for example, with the International Dairy-Deli-Bakery Association which offers food safety courses for food service workers (Newman, 2016). Also, many states, such as Florida, offer food safety workshops for managers. For examples in the 1990s, the second author was a certified Professional Food Manager by the State of Florida when he was working in the retail sector. Restaurants as well as other entities on the food chain should attempt to identify any weaknesses or gaps that become apparent in the growing, manufacturing, storage, selling, preparation, and serving of food and beverages. Testing and inspections, in-house as well as through independent and certified third parties, must be conducted to ensure compliance with health and safety regulatory standards and to maintain the safety and quality of food and beverage products. Traceability emerges as another important safety factor; that is, an attempt must be made to know the origin of the food and its ingredients, as well as where the food was harvested or processed, so that if there is a problem the origin of the illness can be tracked, identified, and rectified. However, as noted herein, and again as emphasized: “Tracing the source of contamination responsible for a foodborne illness outbreak can be an onerous and complex process” (Bassett et al., 2009). Another suggestion would be to regularly close the kitchens and other cooking facilities for a “deep cleaning,” as the cruise lines are now doing to avoid outbreaks of the norovirus. Tyson Foods, for example, has a Food Safety and Laboratory Services Network which conducts 280,000 tests per month at 18 labs across the county, a Food Safety and Quality Insurance Group to ensure regulatory compliance and to evaluate suppliers, and a Sentinel Site program of environmental monitoring that tracks the effectiveness of its sanitation procedures, particularly to detect even low levels of E-coli (Tyson Foods Food Safety and Quality Assurance Department, 2016). Chipolte Mexican Grill, which had to deal with an E-coli outbreak in 2016, now has an extensive, and well publicized, food safety program called Food Safety Advancements (Chipotle Mexican Grill, 2016) which consists of supplier interventions, advanced technology, farmer support and training, enhanced restaurant procedures, food safety certification, and restaurant inspections. The goal of the program is to ensure that the food served is as “safe as possible” (Chipotle Mexican Grill, 2016). Nevertheless, the Wall Street Journal (Jargon, 2016) reported that the company’s profits plunged 95% in the third quarter of 2016. As per the prior illustrations, any entity on the food chain should have and follow explicit policies and procedures regarding to producing, receiving, storing, preparing, holding, and serving food in order to avoid adverse legal and financial consequences. This type of information will help to evaluate whether a particular seller’s food is the source of a person’s illness. Moreover, evidence of the existence of food safeguards and following those safeguards will help to negate any negligence accusations (Bassett et al., 2009).

If an incident does occur, the results of tests conducted by government entities – from the FDA to the local health department, of the food entity’s facilities, personnel, equipment, and procedures will be important evidence. Of course, the food or beverage itself can be introduced into evidence, if possible. Evidence that other consumers or patrons did or did not become ill when served the same food or beverage is important too. Moreover, whenever possible create a contemporaneous report about the event as soon as possible thereafter, include documentation of statements made by the party or parties and any witnesses, photographs, and maintain and preserve any items involved in the incident, if feasible. Also, it is necessary to preserve any surveillance as well as any waivers or releases given and signed by the injured party (Corkran et al., 2016). Investigate the injured party’s social media and networking sites and accounts which are publicly viewable for postings, messages, photographs, or other information that may be pertinent to the incident (Corkran et al., 2016). Be very careful to view only public sites so as to avoid any invasion of privacy claims. Remember that a person will not have a “reasonable” expectation of privacy in content on public sites, which is necessary to sustain an invasion of privacy lawsuit (Cavico and Mujtaba, 2016). Also, it is necessary investigate if other consumers complained of foodborne illnesses at the time of the initial consumer complaint since usually for a foodborne illness numerous people will become ill; and thus if no other complaints are ascertained then one must consider other possible causes for the illness besides food contamination or adulteration (Bassett et al., 2009). Similarly, if the consumer alleges a foodborne illness after eating a particular type of food or a particular meal determine who else ate the food or meal with the stricken consumer. So, if other people ate the same food or consumed the same meal and only the one stricken consumer became ill and the others did not the question is raised as to whether the food is the cause of the stricken consumer’s illness (Bassett et al., 2009). Of course, if there is leftover food or containers for food that is possibly contaminated they must be properly stored to determine if they are truly contaminated to determine potential liability but also to try to ascertain the cause of the contamination so that other entities in the food chain as well as consumers can be warned and proactive measures can be taken (Bassett et al., 2009). Another suggestion would be to put clear, simple, and prominent “warning” information on food and beverage products wherever feasible, for example, nutrition information, calorie count, and the dangers in misusing an item. Recall the failure to warn element of strict liability and the McDonald’s hot coffee case and the “moral of the story” therein: It is cheaper to warn than to be sued for selling a defective product.

Since pursuant to strict liability law a restaurant as well as the manufacturer or any entity on the food-chain is strictly liable for “defective” food or beverage products, regardless if the manufacturers or others exercised due care, we would advise these parties to do the following: first to be cognizant of safety developments to keep up with the state-of-the-art; second, to exercise even greater care; third, to obtain products liability insurance in the form of food safety insurance as well as premises liability insurance, if warranted; and lastly, perhaps, to increase the price of the products to reflect the heightened safety standards and modifications and typically expensive insurance premiums.

8. SUMMARY

Consumers have a legal and ethical right to know and to expect that the food and beverages sold by restaurants as well as other parties in the food chain are in safe, wholesome, and unadulterated condition as well as properly branded and labelled. Restaurants and other entities on the food chain are in a considerably more advantaged position compared to the consumer due to their knowledge and expertise and their role in making, storing, selling, preparing, and serving food. Thus, restaurants as well as other food entities are under legal as well as ethical duties to take special care to try to ensure that the consumer is not harmed by adulterated and contaminated food products. This article has sought to examine three major legal theories of liability – negligence, warranty, and strict liability – in the context of adulterated and contaminated food and beverages sold or provided by restaurants. The authors provided a basic explanation of the principles and elements underpinning these legal theories; and then illustrated their application by reference to and discussion of case law and legal and management commentary. Based on the legal analysis the authors then discussed the legal implications in these areas for the food entities examined herein. Finally, the authors provided recommendations to restaurant owners, employers, and managers on how to avoid liability under negligence, warranty, and strict liability law for adulterated and contaminated food and beverages. We trust that our legal and practical analysis and discussion herein will help restaurant owners, employers, and managers to fulfill their legal and ethical responsibilities to the restaurant patron and thus to provide high-quality and safe food and beverages to the consumer.

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About the Authors

Frank J. Cavico
Professor of Business Law and Ethics The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
Bahaudin G. Mujtaba
Professor of Management The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
Stephen Muffler
Attorney At Law Adjunct Professor of Business Law and Ethics The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
Marissa Samuel
Attorney At Law Part-Time Professor of Management The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, USA
Nicolas- Michel Polito
The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University, MBA. 2016 School of Business Fairleigh Dickenson University Master of Accounting, 2018 (expected), USA

Corresponding Authors

Frank J. Cavico

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