Manslaughter and Food Allergies: When a Restaurant Owner Is Criminally Liable

Going out to dinner at a restaurant is an opportunity to enjoy a pleasant evening in the company of others and, at times, to appreciate dishes that are not usually prepared at home.

For individuals affected by dietary disorders (such as celiac disease), such an evening out can be more complicated, as it is necessary to choose specific establishments equipped to prepare food that is not harmful to people with allergies.

Celiac disease—namely, a permanent intolerance to gluten that causes chronic inflammation of the small intestine—has become increasingly widespread in recent years. As a result, it is now relatively easy to find restaurants where gluten-free meals can be consumed without risking adverse health effects.

Nevertheless, this condition is sometimes experienced as a real hardship, as it does not allow complete freedom in choosing where to eat.

In order to prevent harmful events, a celiac person—and more generally anyone suffering from food intolerances—must inform the restaurant owner in advance of their condition and select dishes from the specific menu provided for people with allergies.

Restaurants that allow celiac customers to dine on their premises must be equipped in the kitchen with appropriate tools and procedures that categorically prevent the affected person from coming into contact, in any way, with foods containing gluten.

Even a minimal gluten contamination in food can cause very serious health problems, potentially leading to the tragic outcome of death.

In such cases, where it is believed that the death is presumably linked to the food served, the restaurant owner may be investigated for manslaughter in relation to the victim and consequently subjected to criminal proceedings to ascertain any liability connected with the ingestion of allergenic foods by the injured party.

This is precisely what happened to a restaurant manager following the death of a young man suffering from celiac disease and cereal allergies, who had consumed an ice cream containing wheat.

Celiac Disease and Multiple Allergies: Information Obligations and the Restaurant Owner’s Liability

The trial court initially acquitted the defendant, but this decision was overturned by the appellate court. The convicted restaurant owner then filed an appeal with the Court of Cassation, which was ultimately upheld.

The Restaurant Owner Was Unaware of the Customer’s Allergies

Through his defense counsel, the restaurant owner submitted the case to the authoritative scrutiny of the Supreme Court, arguing that the judgment issued by the appellate court lacked adequate reasoning, particularly with regard to the statements made by the injured party.

Specifically, the conviction handed down against him—being a reform in peius—was, in the defense’s view, lacking the “enhanced reasoning” required when overturning an acquittal, which is necessary to establish the defendant’s liability beyond a reasonable doubt.

The defense also criticized the failure of the appellate judges to fully renew the evidentiary phase of the trial and the incorrect evaluation of the only documentary evidence in the case file, namely the menu, which generically referred to a “meal for celiacs.”

Thus, in the written agreement between the restaurant owner and the customer regarding the meal to be served, there was no reference to any other allergies—beyond celiac disease—from which the victim suffered.

According to the defense, the reconstruction of the events did not demonstrate that the defendant was aware of the customer’s inability to eat certain foods, as no other allergies—apart from gluten intolerance, and specifically wheat allergy—had ever been communicated to him.

This is precisely why the defendant had been acquitted with a full formula at first instance.

Death Due to Food Contamination: Manslaughter

The Supreme Court, called upon to rule on the matter, found the defense arguments to be fully justified.

In particular, according to consolidated case law, when criminal liability is affirmed against a defendant who was acquitted at first instance, the appellate court has the obligation to explain the alternative interpretative reasoning on the basis of which it deemed the defendant guilty of the charged offense.

Moreover, the changed regulatory framework concerning the renewal of evidentiary proceedings requires a full renewal of the evidentiary phase in its entirety.

In this case, however, the appellate court ordered the renewal only with respect to certain witnesses and based its decision—diametrically opposed to the acquittal issued at first instance—on the same statements that the trial judge had deemed insufficient to support the defendant’s liability.

A fresh examination of the other witnesses would instead have been absolutely necessary, as it could have provided useful indications to determine whether the defendant was aware of the victim’s dietary disorders and of the possible consequences of consuming meals containing allergenic substances.

For these reasons, the judges of legitimacy annulled the contested judgment and remitted the case to another civil judge competent by value at the appellate level.

In matters concerning crimes against the person, a restaurant owner who, having been informed of a customer’s multiple allergies, serves a different dish containing wheat in violation of the agreed terms, is liable for the offense of manslaughter, provided it is proven that the owner had been fully informed of the seriousness of the customer’s allergies and of the actual dangers associated with breaching the prescribed dietary regime. A mere request for a “meal for celiacs,” without the indication of specific cereal allergies, is not sufficient.

(Italian Supreme Court of Cassation, Criminal Section IV, judgment of 7 February 2019, no. 5890).

Legal Protection for the Victim’s Family and Defense of the Investigated Restaurant Owner

Being affected by dietary disorders implies, when dining out, a heightened duty of care on the part of the restaurant owner in the preparation of food to be served to the customer.

At the same time, equal attention must be exercised by the allergic individual, who must provide all relevant information regarding their food intolerances to those responsible for preparing the dishes.

Failure to provide such clarifications may even result in the person’s death. In such cases, the judge must assess, in the specific circumstances, whether the allergies had been communicated to the restaurant owner and whether, despite this, a meal containing allergenic foods was served.