Can You Sue a Grocery Store for Botulism?

Botulism is a life-threatening paralytic illness caused by neurotoxins produced by an anaerobic, gram-positive, spore-forming bacterium—Clostridium botulinum. Foodborne botulism is the type that is classically associated with clinical botulism. Foodborne botulism is caused by eating foods that contain botulinum toxin. In foodborne botulism, it is the pre-formed toxin that causes illness, not the bacterium itself. The incidence of foodborne botulism is extremely low, usually fewer than 25 cases per year in the United States. Most of the foodborne botulism events reported annually in the United States are associated with home-canned foods that have not been safely processed. Occasionally, though, commercially processed foods are implicated as the source of a botulism event, including sausages, beef stew, canned vegetables, and seafood products.

A consumer buys a food item at a store, handles it appropriately, eats it and gets sick from Clostridium botulinum. Who is legally responsible? The store, the distributor, the manufacturer, the supplier of the ingredient that was contaminated. As with most things legal, it depends. The most important variable is the law of the state in which the person was injured. But several basic principles are at work in almost all food illness cases, whether the food product was bought at a store or in a restaurant. And the starting point is that food is a product, something that is made, and injury from food therefore invokes product liability law.

In most states, product liability law provides that any entity that “manufactures” a (food) product is “strictly liable.” That means legal liability even without evidence of wrongdoing, any conduct that might be termed negligent or unreasonable. An entity that makes a food product—at a farm, a manufacturing plant, or a restaurant—that injures a consumer is legally responsible for the injuries caused. Even if it did everything right. The legal principle at work is the innocent consumer should not suffer the burden of an injury caused by product made and sold for profit.

Is everyone who handles an injurious food product potentially liable then? No. Most states’ laws will not hold a retail food seller liable if it simply sold a contaminated food product it did not manufacture unless there is evidence of negligence, some unreasonable act. Suppose you buy a can of peas contaminated with Clostridium botulinum from your local supermarket. Is the market liable? For the most part, no, it has only put the can of peas out for sale and not altered it in any way.

However, the store can be liable to the consumer in three ways, 1) if the store is in a state where there is “chain liability,” that is strict liability, from the farm to the grocery store, to the consumer. In these states any legal fight between the members of the chain is determined after the consumer is compensated; 2) if the can of peas is a “store brand,” that is the store puts its own label on the can therefore making the store the manufacturer in fact; and 3) if the store was independently negligent for example if the can was damaged allowing Clostridium botulinum spores into the can itself, or if the store had reason to believe that the manufacturer did not have procedures in place to prevent Clostridium botulinum contamination.