Houston, TX asked in Personal Injury for Texas

Q: I ordered food from a restaurant via door dash when my food arrived I ate the first taco.

When I bit into the food and Started eating the second taco I began choking. When I was able to throw the food up there was a staple in it. I contacted door dash who didn’t help. And then contacted the restaurant. I would like to know if I can sue the restaurant and door dash.

I’m currently sitting in the emergency room because my throat is burning extremely bad. And it hurts.

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2 Lawyer Answers
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: Maybe.

You’ll have to prove by a preponderance of the evidence how the staple got into your food and be able to attribute it to the negligence of either the restaurant or Door Dash (or the Door Dash driver if he/she is an independent contractor).

Your damages will be your medical expenses, any lost wages, and pain and suffering as determined by the jury. While pain and suffering is somewhat discretionary with the jury, a good rule of thumb is one-half of your past medical expenses as of the date of trial.

Personal injury attorneys routinely accept cases on a contingency fee (typically one-third or 40%) assuming you have high enough damages and a solvent or insured defendant. You should consult a personal injury lawyer in or near the county where the incident occurred.

Jimmy Doan
Jimmy Doan
  • State Wide, TX
  • Licensed in Texas

A: Despite the convenience of food delivery services like DoorDash and Grubhub, by inserting a third party between you and the maker of your meal, there can be an added risk that something might go awry. In your particular situation, there are three parties that potentially may bear liability or responsibility for the contamination of your taco order and any injuries you sustained:

• Restaurant that prepared the meal

• DoorDash

• DoorDash driver (also known as a Dasher)

Before diving into the prospects of obtaining recovery or compensation from one or another of these parties, it is important to understand what you need to do to demonstrated negligence and liability (or responsibility) in the first instance. The reality is that proving that one of these parties is responsible for the staple that ended up in your food can be challenging. This particularly is the situation when you discovered the staple at a remote location away from the restaurant. In other words, each of these potential parties has the ability to contend that the staple somehow ended up in your taco at your home – that they had nothing to do with the problem.

As an aside, an increasing number of restaurants are taking steps to seal bags in some manner in which meals from their establishments are transported to patrons via DoorDash, Grubhub, Uber Eats, and so forth. Oftentimes, a stapler is used to seal the bag. This strategy can result in an errant staple ending up inside the bag and even on or in a food item.

In any event, there are four elements to a negligence claim in the state of Texas:

• Existing duty of care

• Breach of that duty of care

• Breach of the duty of care resulted caused your injury

• You sustained actual injury

In the situation you describe, the restaurant has a legal duty to prepare your meal in a reasonably safe manner. In other words, the restaurant must take all reasonably steps to ensure that wholesome ingredients are used and that your meal is not somehow contaminated with objects like a staple.

DoorDash is further removed from having a legal duty regarding food safety and security. DoorDash is an app that is used by independent contractors, which are the drivers or Dashers. With that said, there may be circumstances in which a sound legal argument can be made that DoorDash itself had a duty of care, breached that duty, and that breach resulted in a patron’s injury. A deeper dive into the facts and circumstances of your situation by a qualified, experienced Texas personal injury attorney would help to determine the extent of liability that might exist on the part of DoorDash.

Finally, it is possible that the driver or Dasher might be negligent in the conveyance of your meal to you. For example, the driver or Dasher may have improperly handled the meal, jostling it inappropriately which caused staples securing the bag to break loose and end up in your food.

While there can be situations in which a driver or Dasher might be responsible for causing a situation like what you experienced, the reality is that a person in that position is not at all likely to have the financial resources (let alone insurance) needed to compensate an individual like you who swallowed a staple that appears to have been in your food.

Keep in mind that most Texas personal injury lawyers will provide you with an initial consultation and case evaluation at no cost. Moreover, Texas personal injury attorneys typically use a contingency fee arrangement whereby you are not responsible for attorney costs unless you obtain a favorable settlement or judgment in your case.

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