What Defends You

Foodborne Illness Claims, and Whether a Health-Code Violation Is Negligence by Itself

Written for: Restaurant owners and managers, insurers, counsel on either side

Parts of this page marked Professional synthesis, not law are a Board Certified Entomologist's reading of published records. They are not legal rules, they are not legal advice, and they are written to read the same for an owner, a customer, or either side's counsel.

Two questions come up whenever a pest line on an inspection report meets a sick customer. Does the customer have a case? And does the inspection report itself prove negligence? The published decisions answer the first with “it depends on the proof,” and Utah law answers the second with “no, not by itself.” Not legal advice.

What a foodborne-illness plaintiff has to prove

The elements are the ordinary negligence elements, and causation is the one that decides most of these cases. Tennessee’s Supreme Court stated the elements and then relaxed the proof rule in favor of the plaintiff:

The elements of a cause of action based on negligence are duty, breach of duty, cause in fact, loss or injury, and proximate cause. — McCarley v. West Quality Food Service, 960 S.W.2d 585 (Tenn. 1998)

We find no requirement that causation in negligent food contamination cases be established solely by expert testimony. An expert’s inability to exclude all other possible sources of contamination affects weight and not admissibility. — McCarley v. West Quality Food Service, 960 S.W.2d 585 (Tenn. 1998)

We, therefore, hold that causation may be established by either expert testimony or through a combination of both expert and lay testimony. — McCarley v. West Quality Food Service, 960 S.W.2d 585 (Tenn. 1998)

A California appellate court, two decades earlier, reversed a judgment for the plaintiffs because causation had not been proved, and it said why these cases are hard:

Decisional law has recognized that food poisoning cases are difficult to substantiate generally because the suspected food has been ingested and is unavailable for analysis. Nevertheless, like any other personal injury action the plaintiff must prove that the food was unwholesome or unfit and caused his illness, irrespective of whether the action is based on negligence or warranty. — Minder v. Cielito Lindo Restaurant, 67 Cal. App. 3d 1003 (Cal. Ct. App. 1977)

We conclude that respondents, as a matter of law, failed to meet their burden of showing that the probable cause of their illness was contaminated food eaten at restaurant. — Minder v. Cielito Lindo Restaurant, 67 Cal. App. 3d 1003 (Cal. Ct. App. 1977)

The Minder court walked through the kinds of evidence that bear on causation: whether the food showed outward signs of contamination, whether others who ate the same food got sick, whether other causes were eliminated, whether anything was analyzed, and whether another meal could explain the illness. And it said something a manager reading an inspection report should notice: the health inspectors’ findings of unsanitary conditions, by themselves, did not prove that the food caused the illness.

The only other evidence relied upon to support respondents claim of causation, was testimony of two health inspectors. This evidence concerned certain unsanitary conditions found at restaurant. These conditions, absent further evidence, could not establish probable cause. — Minder v. Cielito Lindo Restaurant, 67 Cal. App. 3d 1003 (Cal. Ct. App. 1977)

What this site will not say: that getting sick after a meal proves the restaurant liable, or that it never does. McCarley and Minder point in opposite directions on similar proof. No Utah appellate foodborne-illness decision against a restaurant was found.

Is a code violation negligence by itself? Utah’s answer

The phrase people use is “negligence per se.” Utah’s rule is narrower. A violation of a safety statute or ordinance is prima facie evidence of negligence, which the defendant may justify or excuse:

As a general rule, violation of a standard of safety set by a statute or ordinance is prima facie evidence of negligence. Such a violation may be subject to justification or excuse if the defendant’s conduct could nevertheless be reasonably said to fall within “the standard of reasonable care under the circumstances.” — Hall v. Warren, 632 P.2d 848 (Utah 1981)

“Prima facie” negligence is the correct standard and a trial court commits prejudicial error when it gives a jury instruction which provides that the violation of a statute is negligence without the possibility for justification or excuse. — Gaw v. State ex rel. Department of Transportation, 798 P.2d 1130 (Utah Ct. App. 1990)

And before the rule applies at all, the plaintiff has to satisfy a four-part test:

To invoke the rule, a party must show (1) the existence of the statute or ordinance, (2) that the statute or ordinance was intended to protect the class of persons which includes the party, (3) that the protection is directed toward the type of harm which has in fact occurred as a result of the violation, and (4) that the violation of the ordinance or statute was a proximate cause of the injury complained of. — Hall v. Warren, 632 P.2d 848 (Utah 1981)

The Utah Supreme Court restated the focus in 2018:

we specifically focus on whether the purpose of the statute or ordinance was to protect the plaintiff at hand from the type of injury he or she has suffered. — Colosimo v. Gateway Community Church, 2018 UT 26

No Utah decision was found applying this rule to a food-code or health-regulation violation at a restaurant. Whether Utah treats an administrative rule or a county health regulation the same way as a statute or ordinance was not established in the sources checked. Elsewhere, courts have used food law in both ways. Georgia’s Supreme Court, in 1938, let a retail customer use the state pure-food law to show negligence as a matter of law:

While the pure-food law was designed for the protection of the public, and did not in express terms declare other than public duties, the plaintiff as a member of the public for whose benefit it was enacted could invoke its provisions for the purpose of showing negligence as a matter of law — Donaldson v. Great Atlantic & Pacific Tea Co., 186 Ga. 870 (Ga. 1938)

And a California appellate court, in 2018, used the state’s retail food code not as negligence per se but as evidence of what a restaurant operator should be thinking about:

Thus, controlling insect populations at restaurants, so as to protect patrons from living and deceased insects, is the type of concern that one would take into account when operating a restaurant. — Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627 (Cal. Ct. App. 2018)

What this means for a restaurant

Professional synthesis, not law.

1. A pest line on a report is not, by itself, a finding of negligence in Utah. Under Hall, it would at most be prima facie evidence, subject to the four-part test and to excuse, and no Utah court has yet said even that about a food-code line. It is also not nothing: a report is a public document that says what an inspector saw on a date.
2. “Excuse” is a word that lives in records. The Utah rule leaves room for a defendant to show that its conduct met the standard of reasonable care despite the violation. What that looks like for a pest line is a program that was running, a service report, a corrective-action entry with a date, and a monitor count (records that hold up).
3. Causation cuts both ways. The same inspection report that would not prove causation in Minder would not disprove it either. Neither side should read a report as the end of the question.