A Massachusetts Superior Court judge has ruled that a case centering around how a peanut-allergic girl came to be given a grilled cheese sandwich that contained peanut butter needs to go to trial.
The Panera Bread outlet in Natick Mass. made the sandwich that caused the then 6-year-old to have an anaphylactic reaction, which led to an overnight stay in the hospital.
In a decision that should lead to a significant trial precedent for the food allergy community, Judge William Ritter decided on June 14 that there is enough evidence of importance to be considered by a jury.
After a year of pre-trial motions and attempts for a summary judgment, this means that a jury will weigh the claims of Boston resident John Russo, acting on behalf of his daughter, including negligence, assault and battery and infliction of emotional distress. The claims are made against both the owners of the Natick outlet and the national chain Panera, LLC.
Panera’s lawyers had been seeking to have the national chain released from the case, but Ritter did not allow this.
The incident at the center of the case began when the girl’s mother, Elissa Russo, placed an online order for a grilled cheese sandwich from the Natick Panera Bread restaurant on January 28, 2016. She specified in two separate places on the online order form that the grilled cheese was for a child who was allergic to peanuts, and she requested that Panera make sure the sandwich was safe for her daughter to consume.
Despite those instructions, Panera prepared a sandwich that had “a significant glob of peanut butter,” according to the civil lawsuit.
The child, who is identified by the initials A.R. in documents, ate part of the sandwich before realizing it contained peanut. She soon vomited and got diarrhea and once taken to the hospital, broke out in hives all over her body and was given a shot of epinephrine. A.R. was kept overnight in hospital.
On the complaints of negligence, Ritter wrote that he agreed with the plaintiff’s arguments that “it is well-settled in Massachusetts that, ‘when food is furnished by a restaurant keeper in response the order of a guest, there is an implied contract by the restaurant keeper that the food is fit to eat.'”
Disability right attorneys Mary Vargas and Laurel Francoeur are acting for the Russo family. Vargas told Allergic Living that it is significant that Ritter’s ruling “finds there are enough facts to let a jury decide if Panera, LLC, the national chain, is liable for an injury to a customer at a franchise café.”
The judge noted that the allergy policies are made by Panera, LLC at the national level, and it is responsible for the online ordering system, through which this order was made.
Vargas notes that it also allows claims for assault and battery to go forward against the defendants collectively. “All of this should serve as a warning bell to restaurants and their corporate owners that they have obligations to individuals with food allergies and can be held accountable for the failure to meet those obligations,” she said.
A trial date is likely to be set in August.
See also: 2017 article on this case