A Cup Of Joe | Food Poisoning Case Against McDonald's Goes Forward

Our Media Team Director, Maria A. Pardalis, has decreed that PN’s Blog needed a little personality. So now it has a name: “A Cup of ‘Joe’ with Joe.” I like it. I like coffee. I like talking about cases, and not just with lawyers. New issues in the law appear every day. Some are funny, others are tragic. But they all have an effect on our lives. 

The format of the Blog will remain the same, for now. And I will continue to bring to light cases that I think you might find interesting.  You are welcome to comment on the Blog and help change the Blog format into a discussion. Grab a cup of your favorite java and join me in discussing this week’s new case. Feel free to send us your feedback and suggestions at jdn@pnlawyers.com 

This week’s case involves Mark Joseph Danis who went to lunch with his co-worker, Hillary, at a McDonald's in Manhattan.  They both ate the "Southern Style Chicken Sandwich. Several hours later they both got sick.

Mark was at a church event  where he began to feel nauseous, clammy and hot-and-cold. When the event ended, Mark took the "A" train to go home. On the crowded train, Mark felt very sick and tried to contain what he thought would be explosive diarrhea. Mark got off the train at Penn Station. Feeling dizzy, he held on to a railing by the exit stairwell, to bend his knees and take deep breaths of the cold air. Thinking he was feeling better, Mark got up but collapsed on the train platform, landing on his back with his left leg over his right, extended beyond the platform. The train began to move and Mark realized his left leg was caught in the cables linking the subway cars. As Mark tried to extricate his legs, the train kept moving and Mark was injured. Mark sued McDonald's and NYC Transit.

Food poisoning cases are not as easy. In order to sue a restaurant the customer must show both that the food in question was contaminated and that the illness was caused by food. Here is an example:  A student out in Hempstead claimed that she developed food poisoning after eating chicken nuggets in the school cafeteria. The student’s case was dismissed after the school submitted the testimony of its director of food services and of its head cook describing the school's food handling procedures and establishing that no other students were diagnosed with salmonella poisoning in the relevant time period. [Payano v Hempstead Union Free School District, 54 AD3d 322 (2d Dep’t 2008)].

But Mark’s case is different:  in this case, Mark submitted the deposition testimony of his co-worker, Hillary, who ate the same thing and reported the same symptoms as Mark in the relevant time period. The fact that mark and Hillary ate the same meal; and, both became sick several hours later, raised a question of fact for the jury whether the food served at McDonald's was contaminated and made Mark sick.

Mark’s case against McDonald's will go to trial.

The court dismissed Mark’s action against Transit. The judge noted that record did not reveal any question of fact regarding Transit's failure to follow safety procedures or protocols.

Here is the case: http://www.courts.state.ny.us/reporter/pdfs/2018/2018_32437.pdf