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Food Poisoning and North Carolina’s Implied Warranty of Merchantability


In the recent North Carolina Court of Appeals decision Williams v. O’Charley’s, Inc., the Court confirmed that a restaurant patron hospitalized as a result of food poisoning may sue the restaurant providing the harmful food for breach of the implied warranty of merchantability. The damages recoverable in such cases include medical expenses, lost wages, and pain and suffering. If you have been poisoned as a result of ingesting unfit food, whether purchased from a grocery store or restaurant, contact the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526 or send a confidential email using our contact page.

In Williams, the plaintiff ate dinner with his family at a local O’Charley’s. His meal included a piece of dry chicken that stuck to the plate and happened have a strange aftertaste. After not eating anything else the remainder of the night, he woke up the following morning experiencing all the symptoms of food poisoning, including vomiting and diarrhea. Mr. Williams went to the hospital and ended up being hospitalized for seven days. At trial, his treating physician testified that it was his opinion, based upon the history of events given by Mr. Williams, that the chicken from O’Charley’s was the proximate cause of the food poisoning. The jury returned a verdict against O’Charley’s and for Mr. Williams of $140,000.00. Importantly, the jury did not find that O’Charley’s had acted negligently but did find that it had breached the implied warranty of merchantability in serving unfit chicken.

The Williams case is one of the few food poisoning cases reported in North Carolina, and it illustrates some of the difficulties in such cases. In most situations involving food poisoning, the food is thrown away or consumed. Therefore, you have no direct proof that it was contaminated. You are left to rely primarily upon circumstantial evidence such as when you ate the food versus when you first became sick. Even if the circumstantial evidence is strong, it does not necessarily prove the restaurant was negligent. For that, you likely have to show it was on notice the product was or might be defective. Fortunately, a plaintiff in a food poisoning case can rely on a claim for breach of the implied warranty of merchantability. This is a much easier standard to meet.

Proving a breach of the implied warranty of merchantability requires only that you show “(1) that the goods in question were subject to an implied warranty of merchantability; (2) that the goods were defective at the time of the sale and as such did not comply with the warranty; (3) that the resulting injury was due to the defective nature of the goods; and (4) that damages were suffered.” You do not have to prove any bad actions on the part of the supplier of the food.

The Raleigh personal injury lawyers of Maginnis Law represent individuals injured in a variety of circumstances, including those poisoned due to the ingestion of toxic food. We handle such cases on a contingency basis, which means that you do not pay any attorney’s fees until we recover money damages on your behalf. We offer free consultations from our downtown Raleigh office.

If you have been injured due to ingestion of poisonous food, contact the Raleigh civil litigation attorneys of Maginnis Howard at (919) 526-0459 or send the details of your case via our contact page. We represent clients throughout North Carolina, including Raleigh, Durham, Greensboro, Winston-Salem, Fayetteville, Wilmington, and Cary.