If my wife and I got food poisoning after eating at a restaurant, do we have any real legal recourse?

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If my wife and I got food poisoning after eating at a restaurant, do we have any real legal recourse?

We both experienced severe vomiting and diarrhea and spent 2 days bedridden. I called the restaurant and was told someone would call within 24 hours but no one did. We still have the food at home that made us ill, since we left early and thought we’d eat the remainder at home.

Asked on January 9, 2014 under Personal Injury, California

Answers:

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

Answered 7 years ago | Contributor

You should contact the restaurant's insurance carrier to file your personal injury claim.  You and your wife have separate personal injury claims.  If you did not go to a doctor, it may be difficult to prove that you had food poisoning; however, the fact that you still have the food may support your claim that it caused your illness when the food is analyzed.

The personal injury claims filed with the restaurant's insurance carrier should include medical bills, medical reports and documentation of any wage loss.  Compensation for the  medical bills (if you received medical treatment) is straight reimbursement.  The medical reports (if you received medical treatment) will document the nature and extent of your injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement. If both personal injury claims are settled with the restaurant's insurance carrier, NO lawsuit is filed.  If you or your wife are dissatisfied with settlement offers from the restaurant's insurance carrier, reject the settlement offers and file a lawsuit for negligence against the restaurant.  If the cases are NOT settled with both you and your wife, the lawsuit for negligence must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

If the restaurant's insurance carrier settles the case with either you or your wife but not both of you, only the party with whom the case was NOT settled would be a plaintiff in the lawsuit.


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