UPDATED: MARCH 16, 2020

Article by Daniel A. Levy, Esq.

A while back, John Oliver used most of his time on his HBO show to discuss the problem of food waste in America. One of the issues that he pointed out is that stores and restaurants are unwilling to donate food that they cannot sell because they are afraid of being sued. As a New Jersey personal injury attorney, I wanted to offer some perspective on this important issue.

The bottom line is, John Oliver is correct in his assessment that this is a completely false fear and should not impact anyone’s behavior. Mr. Oliver stated that his staff could not find a single case where someone was sued for donating food that made someone sick. I did my own research of New Jersey cases and I too failed to find a single court case involving this issue. Now, only a small fraction of court cases are published in the official court reporters – we have no way of knowing for sure whether someone at some point brought a claim like this, which simply settled unnoticed. However, the lack of reported court cases is very telling. This is because a company is only liable for injuries if they have a legal duty regarding the injured person. No one has a general duty to all people on Earth. And the question of whether there is a legal duty is decided by judges, not juries. So you would need a court case (or a law – we’ll get into that below) where a judge specifically ruled that a company who donates food has a legal duty to protect the beneficiaries of the donation. Such a ruling would almost certainly appear in a reported decision. Since no such decision exists, it is my view that at least in New Jersey there is no recognized cause of action against someone who donates food.

But it goes much, much further than that. Here in New Jersey under the Charitable Immunity Act, N.J.S.A. 2A:53A-7, et seq., charities and their agents, employees, and volunteers are ordinarily immune from suits brought by beneficiaries of the charity. We wrote about this briefly some time ago. The purpose of this law is to protect charities and those who help charities because, obviously, they are charities with a mission to help people rather than for-profit entities with a financial reason to exercise a high level of care. The public policy is to encourage charity, not discourage it by exposing people and companies to liability. Anyone accepting donated food is clearly a beneficiary of charity and a person or company donating the food would likely be seen as a volunteer for the charity. As such, the law would apply in that scenario. Therefore, the donating party could not be sued unless the plaintiff could show that their conduct was “willful, wanton, or grossly negligent”. That is an extremely difficult thing to prove, in any context, during a personal injury case.

Finally, as a matter of practicality, it would be near impossible for a plaintiff’s attorney to ever even consider bringing a claim on behalf of a person who was injured from donated food. Obviously, someone accepting donated food would need an attorney who would accept the case on contingency, meaning, the attorney would work for free unless they received a settlement or jury verdict. Therefore, a simple case of food poisoning would not be worthwhile for any attorney. The case would have to have caused truly serious injuries, which is extremely rare in the case of tainted food. Additionally, despite the fact that some poke fun at personal injury lawyers, the truth is that it would be a true rarity to find a personal injury attorney who would want to argue to a jury that a company should pay money because they donated the wrong food to needy people.

Thanks again to John Oliver for pointing out this important issue and we hope that more companies will take advantage of opportunities to direct unsold food to those in need rather than the dumpster.