Lawsuit Question

U

Uninformed

5,000+ Posts
Just curious as much as anything. My son was at a fast food chain and ordered applesauce. When we got home the applesauce was opened and half of it was a quarter inch think in mold.

I assume that if he had gotten sick, the fastfood chain could be sued. How much though? I also assume that if it was caught before my son ate it that the fastfood chain could not be sued because there were no damages. Is this correct?
 
clearly just trying to determine whether a lawsuit is possible is mental distress to you and your family, so I would recommend suing.
 
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"That's totally inappropriate. It's lewd, vesivius, salacious, outrageous!"
 
Actually taco the reason for the question is two-fold 1) curiosity 2) to better understand the law. Personally, I have never pursued such a case and have had plenty of opportunities. For example, 6 years ago I was at Comp USA and looking at products on a lower shelf and an employee on the next isle over caused a printer on the top of my side to fall and hit me in the head, giving me a concussion and some significant neck pain.

My guess in this case is that there will be multiple mold filled tubs of applesauce found. If the company doesn't act on my call, someone will eat the applesauce without knowing. I am betting that the company won't take the appropriate actions.
 
To answer your question, you probably have suffered no damage (except for not getting the serving of applesauce you ordered and paid for). A pure mental distress case with no physical damage requires proof of intent to harm, I think. Anyway, with such low damages in play, no lawyer is going to pay a $200 filing fee and put time into this.

If you had eaten the bad food, then you could be seeking your medical expenses, your lost work time, if any, and some pain and suffering, if you had that. First, though, you would need to actually prove that the illness you suffered came from the food, and not from any of the 27 snotty-nosed kids you were in contact with in the 48 hour incubation period for most food illnesses to manifest. You would also have to say you saw all that mold, for the proof, but not until after you ate it. I guess with a kid, that could fly.

Finally, even if you prove that you did have an illness, that it came from that store, and that you were not at fault for eating obviously contaminated food, you still have to prove negligence, which is to say that the store will be able to show all that it does to prevent such a thing from happening, with its safety policies, prior health inspections, etc. If the jury thinks this was just some fluke that got past a very serious prevention system, you could still lose.

These are the reasons it would not only be hard to win, but to get a lawyer to look at the case.
 
That's interesting.

15 years ago my brother was at Luby's and bit into a grub worm that was in his spinach. Aside from the statute of limitations issue, he wouldn't be able to sue either because it didn't cause him any harm. It makes sense but is still somewhat surprising. BTW, I doubt I am alone in thinking about these sorts of things.
 
Just to be clear, it's not that you can't sue, it's just that the case doesn't hold up economically. Often a restaurant will settle on a small level to keep customers and for good will--especially if they can do it with gift certificates or whatnot. But, it's hard for them to publicly agree that their food makes people sick, so they will tend to fight you on it if there seems to be no good will answer.
 
Actually, cases like this were non-viable BEFORE "tort reform." But go ahead and think that we saved the world by passing a law that by definition only applies to NON-frivolous cases.

As for the first few posts, yes, those analyses are generally correct. No real damages, just lousy customer service and a breach of the contract to sell you applesauce. The remedy for that breach is to give you good applesauce, and possibly your consequential damages (in the academic sense, maybe the cost of gasoline to drive back there and get your new applesauce, or something like that). Again, that's all really academic, because we're talking about literally a few bucks at most.

Real solution is to take it back to restaurant to (a) let them know of the potential hazard so that they can prevent harm to anyone else, and (b) to give them a chance to make it right, give you a gift certificate, etc.

I spend plenty of time advising people not to pursue legal action, and instead to act as strong consumers to get satisfaction -- sometimes in cases involving MUCH bigger issues. It's just the more cost-effective approach, and you should usually "exhaust your remedies" by giving the other side a chance to do the right thing. It works with enough regularity that such a path generally should be followed.

But of course, many support the kind of "tort reform" that would put no real responsibility on the retailer whatsoever, and would put all the burden on the consumer -- you got sick, tough ****.

Imbalance, in either direction, is quite unwise.
 
My friend in HS was at the local taco villa and bit into his burrito and a razor was in it. He didnt get cut real bad, but they sued and settled out of court. The Taco Villa shut down. I hate him.
 
I'll take a real spider but only if it can sing the eyes and make a hookem horns gesture with its little arachnid legs.
 
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