Can You Sue a Restaurant for Allergic Reaction?

An undeclared allergen is categorized as a “warning defect.” If a menu fails to disclose a major allergen, the restaurant may be strictly liable for the harm, regardless of the care exercised by staff.

Established in the landmark case of Zabner v. Howard Johnson’s, Inc., Florida courts use this test to determine if a substance constitutes a legal defect. The question is whether a consumer would reasonably expect to find the injurious substance in that particular dish (e.g., you would not expect a walnut in a “nut-free” dish).

Effective July 1, 2023, Florida Statute Chapter 509 established mandatory safety protocols for all public food service establishments:

• Mandatory Training: Restaurant managers must pass an approved test and view a specific video regarding food allergies. Staff must be trained on cross-contamination protocols.
• Menu Notices: All menus (including digital apps) must inform customers of their obligation to disclose allergies. Establishments must also display a list of the “Big 9” allergens (milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, soybeans, and sesame).
• “Food-Allergy Friendly” Designation: Restaurants must maintain a master list of ingredients on the premises available to the public.

The sweeping reforms passed in March 2023 created new hurdles for victims:

• The 51 Percent Bar Rule: Florida now uses a “modified comparative negligence” system. If a jury finds you are more than 50 percent at fault (e.g., for failing to carry an EpiPen or ignoring a disclaimer), you are completely barred from recovering any compensation.
• Shortened Statute of Limitations: The deadline to file a negligence lawsuit has been cut from four years to just two years.

Success depends on the rapid collection of specific proof:

• Medical Documentation: Records confirming the severity and blood tests (IgE) linking the reaction to the suspected ingredient.
• Physical Preservation of Food: Securing leftover food for independent laboratory testing.
• POS Data: Subpoenaing point-of-sale data to verify “allergy” notations on the order.
• Training Logs: Reviewing manager certification and staff training records.

• Kayleen Brown (Jacksonville): A settlement against a school district following a fatal reaction to a pastry containing pistachios, focusing on the failure to follow an emergency response plan.
• Dr. Kanokporn Tangsuan (Disney Springs): A high-profile wrongful death suit alleging false verbal guarantees regarding allergen safety, highlighting the critical importance of staff representations.

Through our Abogadas305 initiative, we serve the diverse communities of South Florida. Your immigration status has no bearing on your right to seek justice for negligence in civil courts. We provide a safe, confidential environment for all victims.