QUESTION:
My son has a well known and documented milk allergy. Preschool served him milk and he suffered allergic reaction. I was told that his normal preschool teacher had to leave and did not pass on the information he cannot have milk. His eye swelled and he began to cough and develop hives, however they gave him Benadryl which eased the symptoms and did not need to give his epi pen. What are the legal ramifications of this? He could have died! They didn’t realize what happened until 45 minutes after snack when he complained about eye pain and itching.
ANSWER:
An injured party as in the present case may file a personal injury case on the ground of negligence. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. However, there are some exceptions to this rule. These are situations in which, for policy reasons, the burden effectively shifts to defendants to absolve themselves from responsibility or to show that some other defendant or event caused the injuries, called the doctrine of res ipsa loquitor. The plaintiffs seeking to invoke res ipsa loquitur have the burden of establishing the following three conditions: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. [That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. : The existence of these conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities,the court must leave the question to the jury.” Moreover, a plaintiff who can prove the essential elements of res ipsa loquitur may be able to shift the burden of proof to defendant in an adulterated food case. It would be best to seek personal assistance from a lawyer in order to assist you in filing a personal injury claim.
To read more, click here.