The legal liability of providing something free vs paid

Question

Bob feels charitable on one fine Sunday morning. He made 50 burgers and wanted to give them free.

A few independent examples:

1. Bob distributes the burgers on the street to strangers
2. Bob places the burgers on a public bench and left a sign "FREE" next to the burgers. Bob then left and carry on his day.
3. Bob is a chef and runs a restaurant. He places the burgers(not on the menu)outside the restaurant and placed a sign "FREE".
4. Bob delivers the burgers to a charity organisation and left it at the door. He left a note "FREE".

Alice ate the burger and had a running stomach(though is fictitious, we don't make Alice feel too bad).

If somebody ate the burger and got food poisoning, what would Bob's legal liabilities be? Do the legal responsibilities differ if it was free or paid?

Does it matter if he distributes the free items actively or not? Does it matter who and where he gave the food? Do the profession and location make a difference?

Answer 1

You are not liable under contract but you may be liable under tort or statute

You aren’t liable under contract because you don’t have a contract. However, neither do you have any limitation on liability a contract might provide.

Negligence

The most likely and common-law universal avenue for liability is the tort of negligence.

Negligence requires three things:

1. A duty owed by the defendant to plaintiff
2. Failure to take reasonable care in discharging that duty
3. Harm caused by that failure

The Scottish case of Donoghue v Stevenson (not English as it mistakenly says in the link), established that we each owe our duty to our “neighbours”. A neighbour is someone who should reasonably in our contemplation when we do the ting we do. These do not have to be specific people, they can be a class of unknown but foreseeable people. So, for all your examples, the person who eats the burger should be in the mind of the person who makes the burger, so a duty of care is owed.

Breaching the duty means failing to take reasonable precautions to prevent harm to the neighbour. What that means depends on the specifics of the case. For your examples, a professional chef is held to a higher standard in food hygiene that an amateur.

The duty doesn’t extend to eliminating all risk of harm but it does require that reasonable precautions are taken. Some of your examples seem to take no precautions regarding the time or the risk of contamination between the production and consumption of the burgers - this might be considered unreasonable.

The harm arising must be a consequence of the tortfeasors act or omission and must be reasonably foreseeable. Food poising is caused by contaminated food and is a reasonably foreseeable consequence of poor food management which some of your scenarios clearly are.

Statutory Liability

In some jurisdictions, there may be statute law that makes the supplier liable.

For example, in australia, the Australian Consumer Law imposes statutory guarantees on the supply of goods or services by a business even if they are gifts.

The most relevant being that goods must be of merchantable quality and fit for purpose. A hamburger that causes food poisoning is neither.

Answer 2

42 USC 1791, and analogous state laws, may protect Bob from liability. The burgers are probably "apparently wholesome food", if they "meet all quality and labeling standards imposed by Federal, State, and local laws and regulations". The limit on Bob's liability is that

A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.

Scenario 4 is the safe harbor for Bob (assuming that the charity "does not provide net earnings to, or operate in any other manner that inures to the benefit of, any officer, employee, or shareholder of the entity"). Discussion of the "needy individual" clause is suspended for a moment. Bob himself is not a qualified non-profit organization. We must also assume that the resulting harm was not an injury or death caused by an act or omission constituting gross negligence or intentional misconduct.

The term "needy person" is not defined, so the question arises whether Alice is rich or needy, and what difference it makes. From Bob's perspective, the question is whether he has a good faith belief that the organization will distribute the donations to needy individual, so Bob does not become liable if the organization surreptitiously gives a burger to a non-needy person.

There is the potential of liability from negligence, in case Bob decides to distribute free food to people on the street. The scenario does not explain what act or omission of Bill's caused this "running stomach" – for example if Alice has an allergy to hamburger buns and knowingly eats the bun, Bob is not liable (he has not exhibited a lack of ordinary care for Alice). It is possible that Bob was negligent in his charitable act, but there isn't enough details on the cause of the illness to be more specific.