Hotel, Restaurant, and Travel Law:
A Preventive Approach,
Seventh Edition
Chapter 11
Liability and the Sale of Food
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Introduction
 One out of every three meals is eaten
away from home
 If restaurants serve unhealthy food, a
serious health risk results
 Law imposes liability on facilities that
serve tainted food and make claims
about food that are not truthful
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Adulterated Food
 Food that causes illness
 Possible grounds on which to sue:
 Breach of warrant of merchantability
 Strict products liability
 Negligence
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Warrant of Merchantability
 Uniform Commercial Code (UCC)—rules
to simplify and modernize law
governing sale of goods, including
food
 Implied warrant that goods are
“merchantable”
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Warrant of Merchantability
(continued)
 Merchantable—goods are fit for ordinary
purpose and are at least of average quality
 Exists even if parties never mention it in
negotiations
 Renders manufacturers and sellers of food
virtual insurers that food is safe to eat
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Merchantable Food
 Must be fit for human consumption, will not
make people ill who eat it
 Does not have to be nutritional or taste
good, just eatable
 Inappropriate objects in food make it
unmerchantable
 As does food infected with harmful bacteria
or virus, spoiled, and undercooked
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Objects in Food
 Foreign/Natural substance test—
unrelated to the components or
ingredients of the product
 Reasonable expectation test—object
found in food ought to have been
anticipated by the consumer
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Objects in Food
(continued)
 More situations under reasonable
expectation than foreign/natural test
 Some objects are natural but
unexpected
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Trend toward Reasonable
Expectation Test
 Courts are favoring reasonable
expectation over strict application of
foreign/natural test
 Even presence of natural substances
can render food unfit
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Other Grounds for Breach of
Warrant of Merchantability
 Foreign or unexpected objects in food are
not only basis for liability based on the sale
of food
 Rancid or spoiled food
 Adulterated or contaminated food
 Improper handling and preparation
 Time and temperature abuse
 Significantly burned food
 If food is unfit, warrant of merchantability
is breached
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Class Action
 Proceeding pursued on behalf of
many people injured by the same
cause with common legal issues
 Less expensive and easier to
participate by plaintiffs
 Expands liability exposure of
defendant
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Hot Beverages
 Exercise caution when serving hot
beverages
 To protect patrons from injury, a
restaurant should take several
precautions
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Hot Beverages
(continued)
 Precautions:
 Drinks should be served at temperature
in line with industry standards
 Coffee and tea makers can be preset to
safe-to-drink temperatures
 Lids should be provided for carryouts
 At buffets, diners should have the option
of putting a cap on cups
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Hot Beverages
 Precautions:
(continued)
(continued)
 Lids should have lift-off tabs for sugar
and cream to be added
 Wait staff should avoid placing hot
beverages near a child
 Warn customer verbally and/or put
warning on cup
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Foodborne Illnesses
 Illnesses caused by consuming foods
or beverages contaminated with
bacteria, viruses, and parasites
 Proper handling will usually eliminate
risks
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Foodborne Illnesses
(continued)
 Proper sanitation and cooking will greatly
reduce risk of:
 Salmonella infection
 E. coli—bacterium in foods, especially uncooked
or undercooked beef
 Trichinosis—illness caused by eating raw or
undercooked pork and wild game
 Once quite common, now relatively rare
 Now more associated with raw or undercooked
game meats
 Chefs and kitchen staff should have
adequate training in food safety
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Proof Problems Establishing
Causation
 Plaintiff must prove that food
purchased at the defendant’s
establishment was the cause of the
illness
 Must prove that food purchased was
unwholesome
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Privity of Contract
 Under common law, a direct
contractual relationship was required
between the plaintiff and defendant in
a breach of warranty action
 Privity of contract—relationship
between parties to a contract
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Strict Products Liability
 Based in tort law rather than contract
 Plaintiff must prove three elements:
 Defendant sold product in defective
condition
 Plaintiff was injured
 Injury was caused by the defect
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Strict Products Liability
(continued)
 Eliminates the requirement of privity
 Enhances a plaintiff’s chances of
success in a lawsuit based on
defective food
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Strict Products Liability
(continued)
 If diner becomes ill from food, but:
 cause is inherent in the food
 it poses no threat to most people
 the restaurant took precautionary
measures to protect diners
food will not be considered defective
COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.
Statutory Violations
 Various state statutes require
restaurateurs to follow specified
mandates in the preparation of food
 In a Washington case, a state law
required restaurants to warn patrons
of known risks associated with food
products
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Negligence
 An injured diner claims the restaurant
was careless while preparing the food
 That inattentiveness led to the meal
being tainted
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Choice of Action
 A diner who is served defective food
may have several bases on which to
sue:




Breach of warranty
Strict products liability
Statutory violation
Negligence
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Customers with Allergies
 Restaurant patrons frequently request
that certain ingredients be eliminated
from their food
 Some requests are prompted by
allergies
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Customers with Allergies
(continued)
 Wise policy mandates that substitute
food be served on a clean dish
 Small residue may be sufficient to
cause an allergic reaction
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Food and Drug Administration
 FDA—federal agency that oversees
food industry
 Objectives include promoting public
health by ensuring that foods are:




Safe
Wholesome
Sanitary
Properly labeled
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Food and Drug
Administration (continued)
 Food Code—set of model ordinances
that provides guidance on standards
and practices for the achievement of
food safety in restaurants and other
segments of the food industry
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Food and Drug
Administration (continued)
 Hazard Analysis Critical Control Point
system (HACCP)
 Quality assurance scheme to identify and
minimize spoilage and contamination
problems during food manufacturing and
service
 Focuses on managing risk at each of 10
operating activities, control points,
common to all food service
establishments
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Food and Drug
Administration (continued)
 Among control methods utilized are:





Cooking
Refrigeration
Packaging
Monitoring
Employee handwashing
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Food and Drug
Administration (continued)
 Implementation is an essential
element of managing the operations
of a food-service facility
 Adoption and compliance helps
prevent and mitigate legal liability for
defective food
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Handwashing by Food Preparers
 Critical control point
safety
(CCP)
in food
 If food handlers (cooks and wait staff) come
to work ill, their illness may be
transferred to customers
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Handwashing by Food Preparers
(continued)
 Management should ensure that
employees are knowledgeable about
proper handwashing procedures
 Signs in bathrooms should remind
employees to cleanse their hands
properly after using the facilities
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False Food Claims
 Restaurants often make claims about
the food they sell
 Health or nutritional benefits
 Methods of preparation
 Law requires that claims must be
truthful
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Truth-in-Menu Laws
 Require accuracy in claims made by
restaurants about their food
 Laws apply only to items that are
advertised with a nutrient or health
claim
 Low fat
 Heart healthy
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Truth-in-Menu Laws
(continued)
 Despite limited federal laws, many
restaurants are concerned about
 State laws
 Quality assurance
 Consumer confidence
 Most states have laws to eliminate
misleading food advertisements and
labels
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Truth-in-Menu Laws
(continued)
 Controversies can result from:




Omitting ingredients
Mistaking a product’s origin
Misdescribing a dish
Inaccurately identifying the cooking
method
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Truth-in-Menu Laws
(continued)
 Name of food product references a
geographical place that does not
denote place of origin and can be
used regardless of where food was
made
 Swiss cheese
 Kentucky Fried Chicken
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Truth-in-Menu Laws
(continued)
 Products that have been frozen
cannot be sold as “fresh”
 Inaccurate cooking methods stated
on a menu should be corrected
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Truth-in-Menu Laws
(continued)
 Growing numbers of people are vegetarians
 Fast-food chains are attempting to attract
these diners
 What constitutes “vegetarian” is subject of
some dispute
 To comply with the law and avoid customer
displeasure, restaurants must pay close
attention to accuracy in product descriptions
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Obesity and Accuracy in Advertising
 Obesity is often described as an
epidemic in this country
 Many restaurants and food providers
are taking steps to ensure healthy
options
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Obesity and Accuracy
in Advertising
(continued)
 Nutritional information is available at
their establishments
 Efforts by Congress to pass a bill
protecting eateries from obesityrelated lawsuits have not been
successful
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Food Labeling
 Public has become more concerned
about health issues
 Cholesterol
 Saturated fat intake
 Health claims have become a
significant factor in consumers’ choice
of food products
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Food Labeling
(continued)
 Food producers try to capitalize on
customers’ interests in healthy foods
 Nutritional Labeling and Education Act
of 1990
 FDA has promulgated regulations to
enforce the Act
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Application to Packaged Foods
 Mandatory nutritional labels required
for all packaged foods
 Act requires what information must
be on labels
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Label Information Required
 Standardization of serving sizes
 Regulation/standardization of terms such as
light, cholesterol-free, and low calorie
 Mandatory labeling of fat content by
weight, specifying both total fat and
saturated fat
 Limitations on health claims
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Label Information Required
(continued)
 Mandatory labeling of fiber content by
weight
 Mandatory labeling of following as
percentages of U.S. recommended RDA:






Total fat
Saturated fat
Cholesterol
Sodium
Carbohydrates
Fiber
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Application to Restaurants
 When a restaurant makes a claim about the
nutritional content or healthfulness of a
food product, it must provide to patrons,
upon their request, the information
required to be on a packaged food label
 Information is not required to be on the
menu but must be available upon request
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Application to Restaurants
(continued)
 If a restaurant uses as descriptors of
its menu items any terms defined by
the Act, it must comply with those
definitions
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Kosher Foods
 A designation referring to food prepared
consistent with Jewish religious
requirements
 Must be verified by a rabbi to receive
designation
 People who “keep kosher” have a right to
expect that food advertised as kosher is
prepared as required
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Kosher Foods
(continued)
 Laws in most states prohibit
advertising food as kosher unless it is
 Promoting non-kosher food as kosher
violates these laws
 Many states treat such conduct as
criminal
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Relationships between Fast-Food
Operations and Hotels
 Expanded relationship developing
 Relationship is a contractual one
 According to contract, food is prepared by
hotel employees
 Fast-food company has an interest in
ensuring that food is prepared in the same
manner as it is in restaurants
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Relationships between Fast-Food
Operations and Hotels
(continued)
 The hotel will be only party liable,
assuming a defect originated there
 The hotel is not an agent of the food
company, and hotel employees are
not employees of the restaurant
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Smoking Restrictions
 Many states and localities restrict or
prohibit smoking in public buildings,
including restaurants
 Based on findings that breathing
secondhand smoke is a significant
health hazard
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Smoking Restrictions
(continued)
 Danger applies to both customers and
more so to employees
 Some states permit smoking in an
accessory bar
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Smoking Restrictions
(continued)
 Some restaurants cited for violating
smoking laws have challenged validity
on constitutional grounds
 Generally statues are upheld as an
appropriate means to protect public
health
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Safety Concerns Particular
to Food Preparation
 Restaurateur has a duty to minimize
risks
 Kitchens are inherently dangerous





Meat cutters
Grills
Deep-fat fryers
Knives
Stoves
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Safety Concerns Particular
to Food Preparation
(continued)
 Direct relationship between quality of
accident-prevention program and
frequency/severity of accidents
 Managers must devise policies to
encourage safety
 Employee training is imperative
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Risks Associated with
Donated Foods
 Restaurants may be motivated to give
leftover/unused food to a charitable
organization
 Good managers will verify condition
of the food before it is donated to
employees or people in need
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Liability for Injuries to Patients
 Restaurateurs have a duty to protect
patrons from injury caused by other
customers when injury is foreseeable
 Duty is breached and liability results
when a patron is disruptive and the
facility fails to eject that customer
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Failure to Eject a Quarrelsome
Patron
 If a patron is injured in a fight with
another customer, and it could have
been foreseen, the facility will be
liable
 If employees are unable to remove a
troublemaker, call the police
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Sudden Unforeseeable Attack
 If a fight occurs suddenly, with no
warning, no liability results
 If the owner cannot reasonably
foresee injury, the owner’s
responsibility to prevent attacks is
limited
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Failure to Provide Adequate
Security
 The facility may be liable if a patron is
injured and the facility failed to
provide staff adequate to police
premises
 Attention to security issues is a must
to avoid liability
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Failure to Provide Adequate
Security
(continued)
 Protection plan should include
thorough training:
 How to handle disturbances
 Frequent assessment of foreseeable risks
 Precautionary practices needed
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No Duty to Comply with
Demands of Robber
 Restaurateur has no duty to comply
with a robber’s unlawful demands
 Even though compliance might lessen
danger to patrons on premises
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