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Ely, Counselor at Law
Category: Personal Injury Law
Satisfied Customers: 102346
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Child with both parents went to a local chain restaurant and

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Child with both parents went to a local chain restaurant and ordered a milkshake child finished drinking about half the drink, thereafter sufferred severe stomach ache and brought her to the emergency room for treatment, medical facility reported that child have symtoms of food poisoning, kept child for several hours in hospital for observation. Parents brought back half finished drink and presented it to restaurant manager and manager conceeded that the drink does not taste right or seems bad and wrote up a report.
1) what are the posssible claims of parents?
2) is this worth pursuing for claims for compensating the family for damages?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation.

1) what are the posssible claims of parents?

The more proper question would be "What can the claims bring as a claim on behalf of the child?"

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

Here, the cause of action would be strict liability on behalf of the local restaurant chain for serving food that caused such a reaction.

2) is this worth pursuing for claims for compensating the family for damages?

This is more of a subjective matter. The milkshake has to be tested. How much the parents can get in a settlement depends on how bad the milkshake was. In other words, the worse the report on the milkshake, the more the parents are likely to get in a settlement because the more a jury would award.

If the milkshake was simply made from out of date ingredients, the award may include simply medical costs and a couple of hundred dollars, at most.

If the milkshake was maliciously spiked with anything, or the ingredients were grossly incorrect and dangerous, then the award amount would rise to a few thousand, likely.

An attorney is recommended, whereas here, they do not see you as much of a threat without an attorney since you filing or winning a suit without counsel is unlikely. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.

May I recommend the CA Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

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