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Can You Sue For An Allergic Reaction?

Halloween is already over, but with it comes the start of a holiday season, with Thanksgiving, then Christmas over the next few months. This means that a lot of people throughout Florida are going to be meeting more people, preparing food, and serving it. Of course, different people have different needs, and sometimes they may even have different sensitivities. America, for example, is currently experiencing a big upswing in people with peanut allergies.

Sometimes these peanut allergies are so severe, that they can even result in death, through a process known as anaphylactic shock. Even mere physical contact with peanuts—while not fatal—can cause a skin reaction, such as a rash. Halloween, of course, can sometimes give rise to these allergic reactions as children eat whatever candy they’ve received, more concerned with enjoying the sweetness of their chocolate and other confections than whether they contain peanuts.

Is It Premises Liability?

This is where some homeowners may be concerned. Obviously, in a restaurant situation, if someone has an allergy, specifies that they have an allergy—whether it is to shellfish, or peanuts—and makes a request, for a dish to avoid that allergic reaction that’s a specific action. The restaurant has now been informed of a medical condition, and must, as a business, ensure the safety of that customer. If the allergy is made known in the kitchen to the chefs, and the chefs deliberately ignore the warning, and include the allergic ingredient, they are being negligent. Now, if that dish is served, and the customer eats the food and has the allergic reaction, the restaurant is liable for a personal injury lawsuit, because they ignored the safety request made by the customer.

So what happens in a situation where you give candy or chocolate to a child, or serve food to a guest that causes an allergic reaction?

Negligence Still Matters

While it’s true that premises liability—that is, the legal obligation to ensure visitor safety—does exist even for homeowners, that legal obligation is predicated on realistic expectations. The law only expects people to take reasonable precautions, not attempt to anticipate every single possible emergency, and have contingencies in place to deal with them.

In order for a premises liability lawsuit to be successfully carried out, negligence must be proven on the part of the homeowner. This means that, as with the restaurant example above, it must be proven, in court, that a per-son knew there was a real risk of injury, but chose to ignore that possibility.

So, if a child at Halloween came to your door, and took out a phone, turning on the camera, and stating to the camera and you, “I have a serious peanut allergy,” and then you were caught on camera saying, “Here, take this chocolate and peanut candy bar, and eat it,” this would definitely constitute negligence, and you would likely lose a court case. There is recorded video evidence that a child stated a health risk, with a recorded reply that shows you ignoring that health risk, despite being informed.

On the other hand, if no one mentioned to you that any type of allergic condition existed, you could not possibly know you were presenting a health threat. So if you serve seafood at a party, and someone allergic to sea-food never informs you of this, and eats the seafood offered anyway, you would not be at fault if there was an allergic reaction, because you were not ignoring a risk you were aware of.

So while it is possible to for a very serious allergic food reaction to result in a lawsuit for personal injury, certain crucial evidence needs to be present to move forward.

Daniel Murphy's passionate belief in upholding the Florida justice system by defending the rights of the public against corporate interests, has lead him to become one of Florida's most effective young attorneys. Daniel Murphy carries his enthusiasm for fighting for the rights of the injured outside the courtroom by staying involved in legal and community organizations.

Can You Sue For An Allergic Reaction?

Goldman Babboni Fernandez
Murphy & Walsh

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