There’s a Fingernail in my Taco—What Can I Do?

I get questions all the time on various websites geared for people to ask for general legal advice. One of the questions I see regularly is something along the lines of “I got something gross in my food. Can I sue?”

Most of the time, the general answer I give is that almost anyone can sue just about anyone for just about anything. But the big issue is not can you, but should you?

And the answer to that question in this context is usually a big, fat no.

Read on to find out why.

It’s So Gross, Scary, Outrageous….

Okay, so you got a screw/worm/human fingernail in your taco, burger, milkshake. What now?

First question to pose is, “did you ingest this extraneous substance or item?” The second question would be, “if you did ingest this item/substance, did you become ill and/or require medical treatment?”

Without both of those things occurring, there is no viable case. Arguably, this situation would fall under the category of “personal injury.” To win a personal injury case in this situation, you have to prove:

• The person or business owed you a duty, such as to take reasonable care in preparing your food
• They breached that duty, say, by not following established hygiene protocols
• You suffered an injury as a result of their breach of duty
• You experienced damages, like medical bills or lost wages, because of your injury

So even if your taco preparer has a duty of reasonable care and breached it, but you didn’t experience an injury and resulting damages, your claim would fail. No harm, no foul, no damages, no value, no case.

If you were not injured or ill, the best, and really only, thing to do is bring the unused portion of the item back to the business with your receipt and you will receive a full refund. If the store is generous, they might toss in a free meal or some coupons, in the hopes that making things right will spare them a bad Yelp review or social media rant.

That’s all you get. That’s all you should get. Extraneous items wind up in food all the time despite protections taken to prevent this. You don’t really want to know how many mouse hairs wind up in large food factories and make it into your food, do you? Gross, but ultimately harmless, does not a legal case make.

What If I Was Sickened?

Let’s say you ate a burger that was not cooked fully. You eat it, feel sick shortly thereafter, and run to the bathroom first, and then to the emergency room. You might have a case for food poisoning, although these are often difficult to prove unless the hospital does the correct tests. Also, for most foodborne illnesses, the way in which you become ill does matter. Vomiting only might meet with some pushback, and the same with diarrhea only.

There are many insurance adjusters who take the hardened position that only with both occurring shortly after consumption and with the appropriate isolation of bacteria by the tests in the ER, will they pay fair value.

What about a screw in your taco?

Well if you actually swallow it and choke on it, perhaps that’s a problem. If you see it, or spit it out, you probably don’t have much of an injury and thus no viable case.

How about some gas station convenience store chips that taste gross and spoiled? If you eat a few, notice they taste off, and don’t get sick, bring them back for a refund. If you eat the whole bag and get violently sick, perhaps there is a case.

Another query I see often is “I bought a bag of popcorn/chips and the date on it is past due, what can I do?” Answer is basically nothing, since food expiration dates are not certification of much of anything, and are more or less suggestions. Again, eat them if you wish, but unless you become physically ill, no dice.

Finally, what about the one that goes “I went to a restaurant, told them I can’t eat pork because I’m Jewish/Muslim, and the pork fried rice I ordered had pork in it.” Yeah, sorry, you are responsible for your own dietary restrictions.

How about the variation that “I asked the server if there were peanuts in the dish and she said no. I told her I was severely allergic to peanuts.” In that case, if there were peanuts and you specifically asked that there not be, the restaurant might be liable. Food allergies are tough, as the person affected must be vigilant. Even if the server/restaurant screws up, you will likely have some responsibility attributed to you.

In other words, it depends on precisely what the facts are, who produced the food, who sold it to you, and what you did with it.

It’s Unfair That I Have to Be Aware of What I Eat!

Actually, it’s completely fair and reasonable that you, an adult, should be responsible for what you ingest.

While restaurants and food producers must uphold specific food safety standards, they are never considered guarantors of all food safety.

The other issue in these cases is often that most of these food illnesses are not long-term or permanent, making the value of such cases negligible at best. It is extremely rare that someone becomes permanently injured or ill due to a foodborne illness.

The key in all of these is for the buyer/eater to be mindful of what they put into their mouths. If you do find yourself becoming ill, get medical treatment immediately, keep the uneaten food and the receipt, and get in touch with a personal injury lawyer.

Eat well, stay safe, and be aware of what you eat, who made it, and when.

Takeaways

• Not every stray item in food is legally actionable
• Without illness or injury, there’s really no case because there are no damages
• Gross does not equal a windfall when it comes to purchased food

Contact Chicago Personal Injury Lawyer Stephen Hoffman

In all cases involving car accidents, dog bites, workers’ compensation, medical malpractice, or other injury, immediately get medical treatment, report accidents to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.