Can we file a lawsuit against a restaurant if it was informed of my boyfriend’s shellfish allergy yet mistakenly served him lobster?

I am looking to get some advice about filing a lawsuit. My boyfriend was at a resteraunt and we informed the server about his allergy to shellfish. She assurred him they would let the cook know and make sure they used clean utensils. The group of people ordered various tacos and my BF ordered a fish taco. They brought back 1 plate with 1 taco that was said to be the fish taco and another large plate with all the other tacos. The server stated that they put it on the seperate plate because of his allergy. He bit into the taco and realized that it was lobster. Instantly he started to feel the reactions. I called 911 and we were able to get him help and prevent his death.

Asked on September 17, 2012 under Personal Injury, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Your boyfriend could sue the restaurant for negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable restaurant would have exercised under the same or similar circumstances to prevent foreseeable harm).

Prior to filing a lawsuit for negligence against the restaurant, it may be possible to settle the case with the restaurant's insurance carrier.  When your boyfriend completes his medical treatment and is released by the doctor, he should obtain his medical bills, medical reports, and documentation of any wage loss.  His personal injury claim filed with the restaurant's insurance carrier should include these items.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of his injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  If the case is settled with the restaurant's insurance carrier, NO lawsuit is filed.  If your boyfriend is dissatisfied with settlement offers from the insurance carrier, he should reject the settlement offers and file the lawsuit for negligence against the restaurant.  If the case is NOT settled with the restaurant's insurance carrier, the lawsuit must be filed prior to the expiration of the applicable statute of limitations or your boyfriend will lose his rights in the matter forever.

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