Summer Food Safety, Illness & Liability

Warm weather and picnic meals make spoiled food more common. According to the Hudson Valley News Network, interim Putnam County Health Commissioner, Michael J. Nesheiwat, M.D. issued the following statement: “The number of cases of food-related illnesses rise during the summer for two reasons. The first is that bacteria grow more quickly in warm and humid settings. The second reason is that preparing food and eating outdoors makes it harder to follow simple food safety rules. Some of the more common culprits that cause food borne illnesses include E. coli, salmonella and campylobacter, resulting in a variety of gastrointestinal symptoms, ranging from mild to severe.”

Four basic steps for food safety are endorsed by the U.S. Department of Agriculture’s Food Safety and Inspection Service: C-S-C-C for clean, separate, cook and chill.

  • Unwashed and unclean hands spread germs and can cause illness. Hands should be washed for at least 20 seconds with warm soapy water before eating or preparing food. If you are away from home, bring clean, wet disposable washcloths, moist towelettes and paper towels for cleaning hands and surfaces.
  • Clean all fruits and vegetables before use—especially if you eat it raw, without cooking it.Separate raw and cooked food to avoid contamination when preparing, grilling and serving food. This a main cause of food borne illness. Be careful to avoid cross contamination when packing a cooler as well.
  • Cook all meat to a safe temperature and take your thermometer along to test it. Beef, lamb and veal (steaks, roasts and chops) should be cooked to 145 degrees Fahrenheit (F), pork to 150 degrees F, chicken to 165 degrees F, and ground meats to 160 degrees F. Fish should be cooked to 140 degrees F. Do not rely on the color of the food or juices. Use the thermometer.
  • Chill is the final step. All cooked food and luncheon meats, or potato and pasta salads, as well as left overs, should be kept refrigerated. Insulated coolers need to be packed with several inches of ice, ice packs or containers of frozen water on top to keep food safe.Food left out without refrigeration for more than two hours may not be safe to eat. When the weather is warm and temperatures are above 90 degrees F, food should not be left out for more than one hour. If in doubt—throw it out.

Other important summer food safety tips:

  • If food won’t be eaten for two hours or more, keep hot food at 140 degrees F or higher and cold foods at 40 degrees F or lower.
  • A wide shallow container allows cooked food to cool more rapidly. Refrigerate leftovers promptly to limit the growth of germs. When reheating make sure the food reaches 165 degrees F.
  • Cook from frozen or defrost in the refrigerator or cooler. Never thaw frozen foods a room temperature.
  • When shopping, select frozen and refrigerated items last. Place back in refrigerator or freezer as soon as possible.

Foodborne Illness

The United States Center for Disease Control and Prevention (CDC) estimates that roughly 1 in 6 Americans become sick each year as a result of foodborne illness, also known as food poisoning. Of these, thousands are hospitalized or die from foodborne diseases. Ingesting food contaminated with disease-causing microbes, pathogens, poisonous chemicals, or other harmful substances causes foodborne illness. Although rarely fatal, foodborne illnesses may produce multiple sudden symptoms.

Foodborne illness outbreaks are usually recognized when several people experience a similar illness after ingesting a common food, and epidemiological (laboratory or clinical) data implicate the common food as the source of the illness. This means a diagnosis of any type of foodborne illness generally requires more than one individual becoming sick. As a result of this rigid definition, far fewer incidents of food poisoning are reported than may actually occur.

Despite the infrequency with which food poisoning is confirmed, foodborne illness is a diagnosable condition if the proper tests are conducted. The difficulty in diagnosing a foodborne illness lies in the fact that food poisoning, by its very nature, is a transitory condition. Also, except in rare circumstances, no specific treatment is available for a suspected foodborne illness. Oftentimes, by the time people think to go to a doctor or hospital, the illness will have run its course.

When an individual becomes sick or dies from a foodborne illness, legal action to compensate for losses and related damages may be pursued. Most civil foodborne illness lawsuits are brought to court under one of these theories of liability:

  • Strict Product Liability: Legal doctrine under which a party whose business is selling or distributing products, and who sells or distributes a defective product, is liable, without proof or fault, for harm to an injured person caused by the defect.
  • Breach of Implied Warranty of Merchantability: Similar to strict liability where no fault is required, liability is established if the evidence shows 1) the product was not reasonably fit for the ordinary purposes for which it was sold and 2) such a defect caused injury to the ultimate consumer.
  • Negligence: A negligence claim can be made if the defendants in the lawsuit were negligent in their handling of the contaminated food which led to their sickness. Negligence can be established if the manufacturer or distributor failed to “exercise reasonable care” in producing the product.

Some of the possible defenses in a civil foodborne illness lawsuit are:

  • Assumption of Risk: If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to use the product and is injured by it, the consumer may be barred from recovery of damages.
  • Contributory Negligence: If the defendant’s negligence contributes in any degree to the injury, the contributory negligence is a complete bar to recovery. This is not a defense to strict liability but could be a defense to a negligence claim.
  • Product Misuse/Mishandling: This defense applies where the injury results from abnormal handling or misuse of the product.
  • Directions and Warnings: This defense applies when a consumer disregards warnings or instructions supplied with the product where, if used correctly, the product would be safe.
  • Sealed Container Defense: This defense protects the seller from product liability when the seller received a sealed product and could not have known of the defect/adulteration or caused the defect/adulteration.

When faced with a potential food poisoning incident, one of the crucial first steps should be to identify the source and the illness itself. The following are some important questions that can help to steer an investigation in the right direction:

  • What are the individual’s symptoms?
  • How long did it take for the individual to become ill after he or she ate the questionable meal?
  • What other meals did the claimant eat within 72 hours?
  • Did the vendor receive any other complaints similar to those of the claimant near the time that the claimant consumed the vendor’s food?
  • Who ate with the claimant during the meal which the claimant alleges made him or her sick?
  • Is there a history of similar claims before or after the claimant consumed the vendor’s food?
  • Was the potentially contaminated product one that would have been distributed to other locations?
  • Is there any leftover food from the meal that the claimant consumed?
  • In connection with the preservation of possibly contaminated food, are there any containers in which the contaminated food was packaged?

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