You enjoy some potato salad at a neighbor’s backyard barbecue. Hours later, you’re horribly sick—so sick, in fact, that you miss your nonrefundable vacation. You’re certain that it was the cookout fare that caused your illness. Can you sue your host for the cost of your lost trip?
You can sue, but can you win?
Of course, deciding to sue somebody isn’t a light decision. People make mistakes, and if you’d like to maintain good-neighbor status, you might just let it go. But if you do decide to go in with legal guns blazing, can you actually win?
“The host can be held liable if he or she was negligent,” says Washington, D.C. attorney Thomas Simeone or Simeone & Miller, LLP. “However, there are several obstacles to recovering against the host.”
Attorney Evan Walker, who has a personal injury practice in La Jolla, California, explains that food poisoning cases are “notoriously difficult” because of causation. “The guest will have to prove that (1) she was poisoned, and (2) the poisoning came from food the host served. That’s not as straightforward as it appears.”
The proof is in the pudding (or the potato salad)
“A plaintiff bears the burden of proof and the timing of getting sick after a party is likely not enough to prove that the food caused the illness,” says Simeone. How can you know if it was the food in question—versus some other food—that made you sick? Or perhaps you contracted an illness that is unrelated to something you ate.
Proving it was the potato salad will take time and money, making any damages you might collect less-than-worthwhile. Even a physician or a food safety expert would find it difficult to testify that a given food was the culprit. The food would have to have been tested at the time it was ingested. “Making identification of the condition at the time of eating is impossible,” says Simeone.
Your neighbor is less liable than a restaurant
Even if there was a way to prove that the potato salad caused the illness, the host can only be held liable for negligence—meaning he or she failed to act reasonably. “The duty required of a private person is less than that of a restaurant,” explains Simeone. “If the host used proper ingredients and cooking methods, then he or she will likely not be liable.”
Likewise, if the host purchased and served what appeared to be safe potato salad, there is likely no negligence. “There may be a case against the store that sold the food, but that faces the same issues of proving the product was dangerous,” says Simeone.
Where will the money come from anyway?
What if your neighbor admits that the potato salad might have caused your illness? That’s nice, but unless the host agrees to reimburse you for your cancelled trip, you’ll face the challenge of collectability, according to Simeone.
Your neighbor’s homeowner’s insurance may not cover this type of damage. If it does, then you have to make a claim, and the insurance company will demand that you prove your neighbor was negligent and the potato salad spoiled. If there’s no homeowner’s coverage, you’ll have to file suit to obtain a judgment. This could involve garnishing wages or going after your host’s assets. “It’s time-consuming, and there’s no guarantee of success,” says Simeone.
Bottom line: You may have a legal claim, but it’s not an easy one to prove. Moreover, the damages are unlikely to be large enough to justify the cost of pursuing the claim.