Can You Sue If Your Child Is Injured By Food Allergen Contamination In Public?

If your child suffers from a food allergy that could cause him or her to enter anaphylactic shock upon tactical or airborne exposure, you likely spend many of your waking hours either consciously or unconsciously taking measures to ensure your child's safety. However, these measures must also be balanced with your child's need and desire to live a relatively normal life. What options do you have if your child is injured or made ill after coming into contact with a food allergen in a public place -- such as a school, playground, or hospital? Can you receive compensation for medical bills? Read on to learn more about how federal and state disability laws govern exposure to food allergens in public.  

Does your child have any disability accommodation rights with regard to food allergies?

The Americans With Disabilities Act (ADA) requires schools, businesses, and other organizations to make reasonable accommodations that will allow those with disabilities to gain access to these buildings or services. For example, the ADA requires certain wayfinding signs to be posted in Braille for the vision-impaired, and requires the installation of ramps or other wheelchair-accessible entrances to a public building.

If your child's food allergy is so severe that he or she risks an anaphylactic reaction upon exposure, this may be sufficient to be considered a "disability" under the ADA, giving your child protection under federal law. 

If your child attends public or private school, he or she may be able to receive accommodation under the ADA by the creation and implementation of a 504 Plan. This plan is designed by you, your child (depending upon his or her age and maturity), and the relevant officials at your child's school. A 504 Plan sets out the parameters or safety measures your child's school will undertake to ensure your child can avoid any allergens. Some common measures include the use of a "peanut-free" table (or other allergen-free table) or prohibiting students from bringing allergenic food from home. The school may also ensure that epinephrine auto-injector pen is available within quick reach of a teacher or other official if needed. 

Although the ADA and a 504 Plan can keep your child safe at school, his or her rights in other public buildings -- like libraries -- or parks or outdoor locations are more murky. Because it can be difficult to avoid cross-contamination when there are dozens of individuals milling around, park management officials are understandably reluctant to implement allergen-free policies, believing such policies may actually cause harm by engendering a false sense of security. In these situations, rather than relying on legal principles to ensure a safe environment, you may want to avoid potential exposure by limiting your child's access to these areas.

What should you do if your child is injured or made ill after spending time in a public place? 

To succeed in a personal injury lawsuit against the person or entity you view as responsible for making your child ill, you'll need to establish a couple of factors. First, you'll have to show that the person or entity responsible owed a legal duty to keep your child safe and free from harm. You'll also have to show that this person or entity breached this inherent duty, and that the breach directly resulted in your child's illness. 

In "public contamination" cases, the first factor is often the most difficult. Unless you've specifically entrusted your child's care to another individual, it's unlikely that he or she will be held responsible for an allergic reaction unless he or she engaged in clearly reckless or negligent behavior (for example, offering your child a peanut butter cracker after you've specifically stated that your child is allergic to peanuts). Mere incidental exposure by touching surfaces or playing with another child who may have an allergen on his or her hands is unlikely to succeed in a personal injury claim. For more information talk to someone like Jon D. Caminez, PA.