[co-author: Daisha Bishop*]

“Are there any allergies at the table?” This is a question you’ve probably been asked at a restaurant in recent years. The number of customers responding affirmatively appears to be growing. And for good reason: allergic reactions to food allergens can be severe including anaphylaxis, which is potentially severe and life-threatening. Consequently, many restaurants have begun catering to customers with allergies by developing allergen-free menu items or by including symbols on their menus to identify which items contain (or do not contain) certain allergens. These steps help restaurant patrons safely enjoy their dining experiences and enable restaurants to appeal to a broader client base. However, restaurants taking these precautions must exercise care to ensure absolute certainty about any representations made about the food they serve. Any misstep in that regard could result in significant liability.

In a recent case decided in Suffolk Superior Court, Williams v. Stellar Restaurant Group, Inc., No, 2084CV00657 (Mass. Sup. Ct. May 17, 2024), Stellar Restaurant Group, Inc., the operator of a local burrito chain, was found liable for injuries sustained by an eight-year-old girl after peanut sauce was accidentally included in her burrito. The girl’s parents alleged that they placed an online takeout order for burritos for their family and expressly indicated in their order that one of the “mini” burritos was for a person with a peanut allergy. The mother returned home and distributed the burritos – the burrito for her daughter was identified by number on the receipt and the burrito wrapping. When the daughter opened the wrapping on the burrito, she noticed a brown sauce on the outside of the burrito. Although she asked her parents about the sauce, they assumed the sauce was from the burrito’s beans, and did not stop her from taking a bite. When she did, she told her parents that the burrito did not taste right. Moments later, her parents realized that the brown sauce was peanut sauce. The young girl quickly developed an anaphylactic reaction, and she was taken to the hospital where she stayed for several hours before being discharged later that night.

The plaintiffs sued the restaurant, alleging that the restaurant was negligent in including peanut sauce in the burrito, despite the notation of a peanut allergy in their order. In addition to their negligence claims, plaintiffs also claimed that the restaurant breached the implied warranty of merchantability a which requires goods sold (including food) to be “fit for the ordinary purpose for which such goods are used.” See M.G.L. c. 106 § 3-314. Where the good sold is food, the test for whether the implied warranty is breached is whether a reasonable person in the plaintiff’s position would have expected the injury-causing substance to be in the food. See Phillips v. West Springfield, 405 Mass. 411, 412-13 (1989). Lastly, plaintiffs alleged that as a consequence of the defendant’s breach of the implied warranty of merchantability, the defendant also violated M.G.L. c. 93A (the “Massachusetts Consumer Protection Act”). A violation of Chapter 93A can result in significant liability. A defendant found to have violated Chapter 93A can be liable for a plaintiff’s attorneys’ fees and costs, and the plaintiff’s damages can be doubled or trebled if the violation is found to be knowing or willful.

In Williams, the jury found that the defendant was negligent and that its inclusion of peanut sauce in the young girl’s burrito–despite the indication of a peanut allergy on the order– constituted a breach of the implied warranty of merchantability. The trial judge also allowed the jury to provide an advisory opinion concerning the plaintiff’s claim under Chapter 93A. The jury found that the defendant’s actions constituted unfair or deceptive acts under Chapter 93A, but that the defendant’s 93A violation was neither knowing nor willful. The judge adopted that finding and awarded attorneys’ fees and costs, which increased the plaintiff’s verdict by nearly fifty percent. However, the defendant avoided an award of double or treble damages because there was no finding that it acted knowingly or willfully in including the peanut sauce.

On first blush, it is challenging to reconcile the jury’s finding (that the restaurant’s inclusion of peanut sauce in the burrito was not knowing or willful) with the finding that the same conduct was unfair and deceptive. However, there is precedent in Massachusetts supporting the proposition that a breach of warranty, including implied warranties, can constitute a violation of Chapter 93A. See Maillet v. ATF Davidson Co., Inc., 407 Mass. 185 (1990). Although there are conflicting decisions on this issue, restaurants who are found to have breached the implied warranty of merchantability are at risk of an adverse finding under Chapter 93A.

What does this mean for my business?

What seems to be clear following Williams is that restaurants who take proactive steps to cater to their customers’ allergen requirements, such as menu notations, questions from servers, or the ability to identify allergens via online orders, must be vigilant to ensure that those steps are followed without exception. Failure to do so can create legal exposure not only under the legal theories of negligence and breach of warranty, but also under Chapter 93A, which creates the risk of a significantly larger verdict.

Restaurant owners in particular should proceed with caution to ensure that their employees and staff are thoroughly trained to respond to any allergies identified by patrons, and that affirmative representations regarding allergens in menu items are strictly safeguarded.

Anyone who has worked in a restaurant can confirm that the job is not easy. It is a fast-paced and high stress environment. Notwithstanding those challenges, though, it is imperative for restaurant owners and operators to ensure that appropriate safeguards are both in place and strictly followed to avoid risk not only to their customers’ health, but also to their own bottom
lines.

*Daisha Bishop is a 2024 Summer Associate at the firm.