Legal Question in Personal Injury in California
I had got sick because of an allergic reaction due to an ingredient that was in a burrito I had ate at a local restaurant. (I'm allergic to avocados). The restaurant, Taco bell, didn't have any advertisements or any visual signs of ANYTHING with avocado anywhere inside or outside there establishment. I called and complained and they offered me a free meal. Because of this allergic reaction I was driven to a urgent care where I admitted myself for treatment and was prescribed a medication. Now, I have medical bills that need to be paid for, and I feel I should be compensated for the severe pain and anguish that this has caused me.
On a further note, their insurance company denied my claim and stated the following,
"There are advertisements with pictures of burritos with guacamole sauce and the employees are trained, if you simply would of asked them, they could have told you the ingredients."... My reply to that was "I've been eating at Taco bell for over 17 years now. And I have never heard of them having guacamole sauce. Not everybody sees all the advo's that Taco bell has made. Even if I had, how would I know it was made from guacamole? It couldn't have been green sauce? And how many people ask about ingredients?".
Do I have a case? I wish to pursue this in small claims.
3 Answers from Attorneys
In my opinion, one should assume that all Mexican food has avocado-based products in them, unless otherwise indicated. Typically, one would expect that a person who has violent food allergies would ask about the contents of the food before ordering. However, you're free to try the small claims court route. Make sure to bring all of your medical records and bills, receipts and checks for the payments, and copies of advertisements for the product you ordered that does not state that it contains avocados. Also, bring your sales receipt if you still have it. Good luck!
I don't think you have much of a case. If you have allergies, the burden is on you to make sure the food you eat does not contain ingredients that will make you sick. The cashiers do not have to tell every customer what ingredients are in everything they order just in case something might make them ill. They will give this information to anyone who asks for it, but you didn't ask.
That you never had this problem before doesn't change the situation much. Restaurants are free to change their recipes whenever they want to, or to add new ones to their menu. They are not required to give notice when they do so.
I agree with Mr. Cohen that avocados are such a common ingredient in Mexican food that you should have recognized the risk and taken the appropriate precautions.
You say you asked the insurance company "how many people ask about ingredients?". The answer is that a lot of people do, including a very large fraction of those who have serious allergies to common ingredients. Usually they either ask whether the specific ingredients they're allergic to are included or order their meal without those ingredients.
I'm sorry I can't be more encouraging.
Not only do I feel that you have a weak case, but I do not like cases such as yours because I do not believe it is the fast food industry's duty to tip toe around each and every consumer's allergies.
If any consumer has such allergies, it would be up to that consumer to avoid certain foods.
This is just one lawyer's opinion. Good luck.
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