CUSTOMER INTOXICATION: RESTAURATEUR’S LIABILITY AND “FORTUITOUS EVENT” We can now study two other cases of possible liability for the restaurateur: the serving, by the restaurateur, of food that is damaged or not in good condition, causing intoxication to the customer, and the failure of the restaurateur to warn the client of presence in the food served of substances that cause food allergies, especially when customers suffers from them. In this last aspect, Italian jurisprudence requires the restaurateur to provide rigorous proof of the circumstances that, attributable to the fortuitous event or contributory negligence of the injured party, exclude or reduce liability. For example, there is no exclusion of restaurateur liability when, following the death of a customer who suffered from numerous food allergies and intolerances, it is proven that the specific menu was agreed upon several days earlier by the parents with the restaurateur 18. In the case, on the other hand, where the customer reports food poisoning, the damage could certainly be caused either by improper storage or handling of food and foodstuffs by the restaurateur, but it could also be determined by an incorrect production process by the third-party producer. When a customer suffers damage from food poisoning, it is clear that the restaurateur is in breach of his or her main obligation, which is to serve safe, professionally prepared, contamination-free and non-expired food. EU and Italian domestic regulations, among other things, meticulously regulate how food and food products are stored and kept, through the principles and rules of EC Reg 2002/178 on food safety, the “hygiene package”19, The HACCP selfcontrol system and all derived industry regulations. Noncompliance of them is linked to serious penalties 20. Then, we must remember that the holding and serving of food and food products in a poor state of preservation also integrates, under Italian law, serious criminal responsibilities21. 18 Corte di Cassazione, Civil Section III, Ruling n. 6668/2025. The ruling follows the criminal conviction of the restaurateur for manslaughter. 19 In particular EC Regulation 853/2004 on the hygiene of foodstuffs and EC Reg 854/0024 which lays down specific hygiene rules for food of animal origin. For a summary of European standards https://www. europarl.europa.eu/factsheets/it/sheet/51/sicurezza-alimentare#:~:text=852%2F2004)%20e%20stabilisce%20 norme,853%2F2004). 20 Regulated in Italy by Legislative Decree n. 193/2007. 21 Regulated in Italy by Law n. 283/1962. 161 THE RESTAURATEUR AND THE CUSTOMER’S HEALTH
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