CanI sue a restaurant if I had an allergic reaction to shellfish after making them aware of my allergy?

I was eating lunch at a restaurant and I ordered a grilled chicken sandwich. Now I noticed when reading the menu they had shellfish such as lobsters/clam etc. I told the waitress “If you can please keep it away from the shellfish, I am allergic”. She returned with my food and said she told me she made sure, and told the chef and that I was “okay”. After I got done eating, about 20 minutes later. I noticed my eye. I then told the person driving who I was with I had to go to the hospital. The closest hospital was an hour away. I had to get transported by ambulance and it was a very close call. My throat closed up and I almost stopped breathing.

Asked on August 24, 2011 New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You may have a legal claim. If you made them  aware of your allergy and asked them to keep the shellfish away, but they nonetheless served you food that had been exposed to, tainted by, or incorporated shellfish, then they may have been negligent, or unreasonably  careless, which could make them liable. If they are liable, you could recover your medical costs (including ambulence); your lost wages, if any; other out of pocket (e.g. a cab, if you had to take one home); though probably not pain and suffering, if the condition was resolved within a few hours or a day--pain and suffering recovery is  only available, generally, for long last consequences. Depending on how much you might hope to recover, you could either retain an attorney or bring a lawsuit representing yourself. Good luck.


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