Legal Question in Personal Injury in New York

Re: Severe allergic reaction to food

By "anything I can do," I take it you mean can you get money for this incident that happened three years ago, a short hospital stay and apparently no further problems. Generally, it is not a restaurant's responsibility to know your allergies and they are not required to list every ingredient in a dish. Obviously, menus are not a complete list of ingredients. It is the responsibility of the person with the allergies (ie, the one person who has the important, life-saving information) to ask. People with severe allergies should ALWAYS ask. If you need firm advice about your specific facts, and want to recover money for the 2003 incident, to seek money from the restaurant for this , you need to confer with a NW lawyer to discuss all relevant facts, and the applicable deadlines.

Re: Severe allergic reaction to food

You have a valid negligence claim that would probably get settled for somewhere between 3,500 and 7500.

I suggest you retain an attorney. There have been many similar instancess with peanuts and peanut oil.

Re: Severe allergic reaction to food

The statute of limitations on negligence claims is 3 years from the date of the incident. You have to file before the 3 year anniversary (December) in order to preserve your claim. My colleagues are also correct and I echo the comment that a restaurant does not have a duty to know somebody's allergies. This duty may, however, exist if they are informed of your allergies, a fact which does not seem to exist.

Now, the fact that they served you the wrong dish shows that they made a mistake. Carelessness. This will not rise to the level of negligence unless a breach of the duty causes harm that is foreseeable by the reasonable waiter. Arguably, common sense dictates that somebody may order one dish as opposed to another because of several reasons. Taste being one, but allergies another. So it can be argued that one foreseeable risk of serving the wrong dish is that you will serve something that the patron is allergic to. Duty is generally a question of law for the Court, not the jury.

Having said that, even if the restaurant is liable, the jury may consider any comparative negligence. They may possibly decide that you are 10%, 50% or as much as 99% negligent for not advising the restaurant of your allergies before ordering. I won't speculate as to what a jury would do, as long as you understand that if this is a $3500-$7500 case, the ultimate award may be reduced for comparative fault, and legal fees will be your own responsibility. Then it's your decision whether it is worth it, financially, to pursue it.