I know that my donated food is protected by the Good Samaritan law, so I can't get sued if it makes someone sick after I donate it. But what about takeout and leftovers from the dining room? For example, if a customer packs up half an entree, leaves it in the sun, and gets sick a few days later, am I responsible?
– Chef, College Foodservice, Boston
In this column, we previously addressed proper procedures for donating surplus food to a nonprofit like a soup kitchen or shelter. And you’re right—from that entry: “The federal Bill Emerson Good Samaritan Act protects restaurants that donate food in good faith to nonprofits like food banks, food pantries and soup kitchens. Some states and municipalities have additional protections in place.”
While it is true that the same protections do not apply when leftovers are not donated to a nonprofit, many attorneys agree that as long as you did everything you could to ensure proper food handling while it was under your control, there would not be a strong case against you if the guest mishandled the food and it caused illness later. Our friends at Avvo posed this question to a group of attorneys, and here are some excerpts of their responses:
- "In Massachusetts, no one can collect in a lawsuit if their own behavior is at least 51% responsible for their damages.” -David Owens
- "If the food was good when you served it, there is no claim.” -Susan Sachs
- “… there probably is not any liability for you because you have no control over the food once it leaves the establishment.” -Michael Szklasz
All of that said, it remains bad business for guests to get sick from your food, even at their own hands. My advice is to do what you can to adjust portions to minimize leftovers (also helping with food cost), and help guests learn proper handling for storage and reheating.
As always, check with your attorney about a policy or a specific case. More on managing leftovers here.