Parents Sue University For Student Death from Allergy

Dining hall advertised “contains no allergens” food, when it was actually cross-contaminated

A parent sends their child to college with hopes and dreams—those of the student and the parents. For any parent, the day a child leaves home to be on their own at 17 or 18 years old feels like blind faith. You have to have faith in your child to use good judgment and make wise decisions, and faith in the school to keep your child safe. 

Tragically, that’s not what happened for 18-year-old Trinity International University freshman Avery Gilbert. 

Avery arrived on campus on August 7th, 2022. On August 10, he went to the campus dining hall with his football teammates and ate what he believed to be a chicken meal. The meal was from a section of the dining hall designated as “The Zone: An Allergen Sensitive Area.” The meal he selected was described as “grilled chicken, roasted potatoes, and veggies,” and it was marked as containing no allergens. 

Avery and his teammates trusted the kitchen and the signs and began to eat what they believed was a chicken meal. But as he ate, Avery began to feel strange. He left the dining hall and began heading toward his dorm. On the way, he called a friend and said he was beginning to have a severe reaction… and then he hung up and called 911. Shortly thereafter, a group of students found him collapsed on the ground.

When paramedics arrived, Avery was unconscious. He was not breathing and was in cardiac arrest. He died at a hospital after an hour of CPR, several rounds of medicine, and advanced life support.

The Gilbert family learned later that the chicken meal Avery ate was cross-contaminated with fish protein, to which he was allergic.

Who is liable for Avery’s death?

Avery’s family filed a lawsuit against the university. The complaint alleges that the school was negligent for reasons that include:

• Chicken that was mislabeled as containing no allergens
• Cross-contamination with allergens during dining hall food preparation
• Failure to provide “adequate and accurate warnings of foods containing food allergens”
• Failure to properly train staff on how to avoid cross-contamination while preparing food

The family’s lawyer said that, “Anyone who has a food allergy should be able to safely rely on professionals who label their menu as allergen free, not die because a menu was wrong.”

How do the courts handle liability?

A personal injury lawsuit is based on the theory of negligence. 

In general, a defendant is found negligent if the plaintiff can prove the following:

1. The defendant had a duty of care to the plaintiff. You can have a duty of care to someone you’ve never met. This means that the defendant is responsible for avoiding foreseeable harm to any other person. In this case, the university had a duty to keep its students safe, which includes ensuring that students who have food allergies have safe and clearly labeled food to eat in the dining halls.
2. The defendant breached their duty of care. In other words, the defendant’s action or inaction went against their legal obligation to avoid harm. In this instance, that breach could have occurred when the university failed to properly train its food service workers, allowed cross-contamination of allergens, or failed to properly label and warn students about the menu.
3. The breach was the cause of the injury. The plaintiff must prove that the action or inaction that was the subject of the breach actually caused the harm. If the family of Avery Gilbert can prove that the school’s failure to handle food properly was the cause of Avery’s death, then this element will be satisfied.
4. There was an actual injury. Certainly, it’s without question that there was an actual injury in this instance because Avery died. However, this is a central element of personal injury lawsuits — because some people want to sue someone because they’re angry, inconvenienced, etc. and those are not causes of action for a lawsuit.
5. Damages. In other words, the injury cost you money. The purpose of personal injury law is to make a plaintiff whole, or to restore them to the financial condition they would be in if the accident had never happened. Obviously, there is no amount of money that can bring Avery back to his family, but they can recover damages for what he would have earned in his lifetime.

This case is still working through the court system, so there is no resolution yet. If the Gilbert family satisfies each element to prove that the university was negligent, they will likely receive a settlement or verdict in their favor.