Food Allergies and Children: Is There a Legal Responsibility to Keep Your Child Safe?

11099749486_c361b8d563The holiday season is upon us, and with it an abundance (some might say overabundance) of cookies, candies, and other sweet treats. While many relish the chance to indulge in once-a-year sweets like pecan pie, sugared almonds and pumpkin shaped peanut butter cups, for those with allergic reactions to peanuts and other nuts, participating in the holidays can be stressful at best, and deadly at worst.

If you have a child with a potentially deadly peanut or nut allergy, that stress may be multiplied tenfold.

Children may get swept up in the merriment and may eat a forbidden food, either because they are not paying attention or they just want to be like everybody else. Adults may not be as vigilant either, as they are distracted by playful children and greeting party guests, and tell a child or his parents that a particular food is fine, when it in fact is not. And even if the child takes all proper precautions following the accidental ingestion of an allergen – dosing on Benadryl and administering an epi-pen – the results can still unfortunately be tragic, as was the case with 13-year-old Natalie Giorgi of Sacramento, who died after accidentally eating a rice krispie treat that contained peanuts at camp.

Personal Injury or Wrongful Death Claims from Child Allergies

If your child accidentally eats a peanut or other food that causes an allergic reaction that requires medical treatment, you may have a personal injury claim based on the theory of negligence. If the allergic reaction resulted in your child’s death, you may be able to file a wrongful death claim.

In order to prevail on such a claim, you would need to prove that the person or entity who provided the allergen-laced food was aware that your child had a potentially deadly allergy, and that they made assurances that certain foods would not contain the allergen. If your child was going to a Christmas party at her friend’s house, even though her mother was aware of the allergy, if she said from the outset that she would not be accommodating your child, then she most likely would not be found liable if your child ate something containing the forbidden food at the party, since she’d made clear that nothing would be safe.

If, however, she promised that there would be no peanuts served, or if she told your child that a particular food was safe when it in fact was not, then she could be found liable for damages under either negligence or wrongful death (depending on the ultimate outcome) because she was aware of the allergy, promised to take precautions, yet failed to do so.

In addition, you would also need to prove that the food that caused the reaction was one that your child thought was safe to eat. If your child was told that the chocolate cake had peanut butter filling, but he ate it anyway, whether you had a claim would likely depend on the child’s age. A five-year-old may not be considered responsible enough to not eat the cake with peanut butter filling, whereas a 15-year-old might be.

Walnut Creek Personal Injury Attorneys

If your child has suffered an injury due to an allergic food reaction after eating an allergen at a holiday party, social event or even a restaurant, you may be able to file a personal injury or wrongful death claim. The personal injury attorneys at Walnut Creek’s Appel Law Firm LLP have more than 60 combined years of experience handling personal injury and wrongful death claims. Conveniently located near the Walnut Creek BART station, we are here to help. Call us today toll-free at 888-527-0674 to schedule a consultation.

Photo Credit: Cammera=lagging on new flick’r via Compfight cc

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