What to Do if a Customer Cries Food Poisoning

An attorney offers advice on verifying claims, making amends and avoiding a lawsuit.
Food poisoning claims can seriously hurt business. It's smart to know your options and have a plan of action ready. (Photo: phoelixDE/Shutterstock)

An irate customer calls and says the dinner she ate at your restaurant last night gave her food poisoning.

What do you do?

Attorney Bill Marler, who specializes in food poisoning cases, has some advice on verifying food poisoning claims, making amends with customers and avoiding a lawsuit.

Ask a few questions

During the call, try to get some basic information. Here are some questions to start with:

  • When did you dine with us?
  • What did your order?
  • When did you start feeling unwell?
  • Did you seek medical treatment?

If the customer was hospitalized, try to find out more details, said Marler. “I would ask them if they ever had a stool or blood test that confirmed any particular bacteria.”

Take notes on the responses. They’ll come in handy if you need to consult with lawyers and insurance companies.

Learn about incubation periods


“It’s so much better to be confident in your food safety plan so that you don’t have a big problem ever.” -Bill Marler (Photo: Bill Marler

When customers get sick, they tend to blame the last place they ate. However, incubation periods (the time between ingesting a pathogen and feeling symptoms) often tell a different story.

“Most food-borne pathogens that are problematic for restaurants are bugs that make people sick over a variety of periods of time, which can be a few days to weeks,” said Marler.

His white paper on proving food-borne illness cases, “Separating the Wheat From the Chaff,” goes into detail on this subject and outlines typical incubation periods for the most common food-borne pathogens.

“The ones that are devastating for restaurants are E. coli and salmonella,” said Marler. Since E. coli typically incubates for two to five days and salmonella usually takes 18 to 36 hours, a customer who says they felt ill two or even eight hours after eating your food doesn’t have a way of tying those pathogens to your restaurant.

“Management who understands incubation periods a little bit will help them figure out whether or not they’ve got a legit claim.”

Say sorry — even if it’s not your fault

Apologizing can make a huge difference in the outcome of food poisoning claims, even if it wasn’t your food that sickened a patron.

Some people have been taught that an apology can be construed as an admission of guilt. But Marler believes in apologizing. “There’s a false belief that saying you’re sorry can get you in more trouble, but that’s not the case. Saying you’re sorry will help you avoid more problems,” said Marler, who noted the customer might not file a claim if you’re considerate to him.

You can choose to refund his meal or offer a gift certificate to make amends. “Most people would be happy and go away.”

If a customer was hospitalized and is threatening legal action, restaurant owners can opt to make further amends.

“Maybe offering to pay the deductible is worth it to make customer happy,” he said. It will likely cost less than hiring a lawyer, which you’ll need to do if the customer files a suit.

Determine the likelihood of a lawsuit

Most people don’t seek medical treatment for food poisoning. And of those who do, Marler estimates that 75 to 80 percent don’t have a stool or blood test that confirms a bacteria.

“I can tell you unequivocally if you just have one person sick without a culture positive for bacteria and you have no other illnesses happening, there’s no way they can triangulate that back to your restaurant,” he said.

This type of isolated case is unlikely to turn into a legal battle. However, if the customer has tested positive for salmonella, E. coli, listeria or another pathogen, you could have a problem on your hands.

“The first thing to do is contact your liability carrier and send the case directly to them,” said Marler. Forward notes you’ve taken during the call. “They’ll hire a lawyer and evaluate that case and deal with it appropriately.”

Surviving widespread claims

Widespread claims of food poisoning can devastate a restaurant. If multiple people are calling in a short period of time or you’ve noticed a few food poisoning claims on Yelp, you’ll need to do damage control fast.

“If you’re starting to see a lot more cases and it’s the same complaint, that’s probably something you should contact your insurance company about right away so that there’s a pro handling it, not the management team,” said Marler.

The biggest risk owners face is when the health department has determined your restaurant to be the source of a major outbreak. If you get a call from the local authorities, contact your insurance company immediately.

“Health departments don’t get these things wrong, so there’s no sense in trying to fight that,” said Marler.

“The first thing you do is start working with the health department and start crafting a message of care and concern to victims.”

Communicate sincere apologies and make the public aware of steps you’re taking to prevent this from happening again. “Restaurants that show some level of remorse tend to survive these things because it looks like they’re being socially responsible.”

Practice food safety

Protect the health of your customers and the reputation of your restaurant by enforcing airtight food safety protocols. This will minimize the likelihood that a customer’s illness was actually caused by your food.

“Obviously the best way to avoid having this kind of conversation is to avoid sickening people to begin with,” said Marler.

Follow the guidelines set by your local health department, make immediate corrections to infractions noted on your latest inspection and ensure your staff follows cleaning and sanitation protocols. Marler also recommended heeding the advice of Frank Yiannas, vice president of food safety at Walmart, who has written a comprehensive guide to food safety.

“It’s so much better to be confident in your food safety plan so that you don’t have a big problem ever,” said Marler.

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