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A friend of mine posted about how someone keeps stealing her food at work, and I recommended she lace it with some insanely hot hot sauce. Someone else commented that she could be liable for poisoning someone if she did that.

The thief is already ignoring written labels saying 'private' and 'do not take this if your name isn't ____'. My assumption would be that this constitutes a warning label, and that she isn't responsible, just like a company isn't responsible if you injure yourself using their product in a manner inconsistent with their instructions.

So, I'm wondering:

  1. Is there any liability at all, since the item in question is being stolen?
  2. Are there any specific legal guidelines for what constitutes a written warning that waives liability for misuse of a product? If so, would this meet those criteria?
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    As someone who eats insanely hot food on a regular basis, I would be rather perturbed if someone stole my lunch, then sued me for poisoning them. – dsolimano Jul 7 '15 at 12:27
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    If the hot sauce is sold as a condiment to be added to food as desired, how could putting lot on your food be described as "poisoning"? – DJohnM Jul 7 '15 at 17:39
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    Well, in this case, I was thinking of one of those hot sauces that says something like 'do not consume directly, this is only to be used diluted as an ingredient'. – childofsoong Jul 7 '15 at 17:41
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    @soong such hot sauce will have been diluted by virtue of having been added to the food. – phoog Jul 7 '15 at 17:46
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    @soong the "injury" here would be eating a food that is not to one's liking. The fact is that the hot sauce is a food product used as directed. I doubt a court would find that actual injury occurred. – phoog Jul 7 '15 at 17:51
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(I'm taking for granted that the question is about the application of poison to food, and I'm answering the general question about liability for poisoning food expected to be stolen. Whether application of a particular hot sauce meets that assumption is outside the scope of my answer.)

The facts right now are:

  • theft is foreseeable
  • injury is foreseeable

If you poison the food in a situation where a reasonable person would foresee theft and subsequent injury, then you are liable for at least the tort of negligence if the thief is in fact injured.

Simply adding a note saying "don't steal" doesn't disclose the danger.

Do you have a duty of care to other people with access to your food? (That is the remaining element of negligence.) Yes. (See http://premisesliability.uslegal.com/duty-owed-trespassers/). You have a duty to not willfully or wontonly trap or otherwise prepare harm for would-be tresspassers, and I believe that extends to lunchroom thieves.


But, the simple answer is don't poison food!

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    Would that change if the note said something along the lines of "Danger, do not eat"? – childofsoong Jul 7 '15 at 1:00
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    That might be enough. But why not just fully disclose the danger? – user248 Jul 7 '15 at 1:00
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    I thought "attractive nuisance" was limited to children. Cases where an adult committing a misdemeanor like trespass or burglary successfully sues the victim for injuries suffered in the commission of the crime are notorious. Is there some common law perspective that might make this seem less uneasonable? – feetwet Jul 7 '15 at 3:16
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    @feetwet Agreed :) Conspicuously disclosing the nature of the danger in a way that a reasonable person would expect all foreseeable viewers to take seriously would seem sufficient to me. Although, for land, there could be children that enter undeterred. – user248 Jul 7 '15 at 16:55
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    Of course: That's why I surround the landmines in my back yard with a fence that meets government and insurance standards for keeping children out of swimming pools ;) – feetwet Jul 7 '15 at 17:01
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It is illegal because of the intent to cause harm. If someone overhears you saying you added hot sauce to hurt them, not because you like hot sauce, then you could be legally on the hook for poisoning or assaulting them. Setting traps for humans is illegal, even if they are on your property and/or the victim has to have committed a crime to trip them. In this case it doesn't matter whether you add a reasonable amount of hot sauce.

If you kept your mouth shut you might still be in trouble if there is evidence that you intended to cause harm. If you normally don't put hot sauce on your food, and out of the blue you put an unreasonable amount of very hot sauce on your food, then your intent to harm might be established, especially if the first time you try this they don't take the bait and you avoid eating the food yourself. That shows your motivation wasn't to eat the food yourself, and leaves only the motivation of setting a trap for your coworker.

Where, legally, that leaves people who genuinely like hot sauce on their lunch? I can't find any precedent of someone getting in legal trouble like this. If the intent is not to cause harm, then some duty of care+negligence would have to be established. I think the first roadblock to such a case would be that it's reasonable to expect that food might contain a reasonable amount of hot sauce, even if the label (or lack of label) doesn't indicate that.

So your own intent to do this for the purpose of causing harm is what makes this illegal. (I would note, however, that if you left something truly horrifyingly spicy, think highest on the Scoville scale, something that makes spicy-entheusiasts cry, unlabeled in a random public fridge, it could be found negligent, even if you didn't mean to hurt anyone)

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Booby-trapping is dangerously fraught. Mainly because there is premeditated intent on your part to cause injury. In the same way that it was a very serious crime for the guy who poisoned Tylenol bottles on shelves, your poisoning food that you reasonably expect to be consumed is also.

What if that thief is taking your lunch and giving it to a homeless shelter? Now there exists a third-party that is injured by your premeditated intent. What if you take a McDonald's hamburger and lace it with ghost chili peppers? Well...it's in a McDonald's wrapper, and they don't sell ghost chili sauce.

I was watching a youtube vid last week of a guy who set up a booby-trapped "amazon purchase" box on his porch stoop. it was the "exploding box of dog excrement" trick. He indeed "got his man"...who drove off with his stolen package, only to have it explode in the car. What if the driver of that car then lost control, veered, and hit a child on the sidewalk? The booby-trapper is, sadly, on the hook.

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