I Found A Foreign Object in My Food, Can I Sue?

hambergerThe simple answer to this question, which every lawyer hears a hundred times, is; “Yes, you can sue.”

However, the follow up answer is, “No, I won’t represent you and no, it isn’t a good case.”

The sad reality is that anyone can sue anyone for anything. All it takes to sue someone is a petition and the filing fees, and sometimes not even the filing fees.

The more important issue is whether or not you can win the case. 

Just because you find a foreign object in your food doesn’t mean you have a case worth pursuing.

A case worth pursuing has two different prongs that must be met. The first is liability. Liability essentially means someone is somehow legally responsible for an act or omission. In the case of finding a foreign object in your food from a restaurant the liability depends on what the foreign object is.

If you find a cherry pit/stone in a slice of cherry pie, or a fish bone in your fish sandwich then the courts have found that these aren’t really foreign objects.

But what about the case where you are digging through a taco salad and find a piece of metal in your taco meat?

That is obviously something that isn’t to be expected and therefore really is a foreign object. But who is responsible? Was it the restaurant, the wholesaler that sold them the meat, the packaging company that sold the meat to the warehouse, or the place that ground the meat? Who was responsible for the metal being in there? 

A consumer may not know who it was, and yet in a lawsuit it is up to the plaintiff (the person suing) to prove who it was. That is going to require hours of discovery, depositions, plus to win the case you are probably going to have to sue all of them, which adds to your expenses. You can figure an additional $50-75 each just to have the lawsuit served on each of these companies and then figure another $500-1500 to do each deposition in the case.

And let’s assume that after all of this work is done, and you can identify one or more of them who were at fault, how were you injured because you found the piece of metal?

Obviously you can claim the cost of your meal that night, but let’s assume that no one at your table ate their food and you want to sue for the $100 it cost for the entire meal. At this point you have spent thousands of dollars and your only damages are $100 for the cost of the mean. Would you be willing to take a bet where you are going to have to gamble $1000 and the most you could win would be $100? Not usually.

The issue in many, many cases is whether or not you have sufficient damages to justify the time and expense involved in pursuing a lawsuit.

The answer might be different if you had swallowed the piece of metal and had to be rushed to the hospital to have surgery, missed work, incurred medical expenses, etc.

Remember, cases have to have two elements to be worth pursuing; 1) Liability and 2) Damages. 

If either are missing or too hard to prove then the case isn’t worth pursuing unless you just don’t have anything else to do and don’t mind spending a lot of money “for the principle”. The lawyer’s principle is to make a profit because principles don’t pay those huge student loan debts the attorney incurred nor the cost of operating his office (and his life) every day.

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