Bringing in a peanut butter sandwich to discourage lunch thief who has peanut allergy

Question

Let's say my work has issues with a lunch thief, and the most likely suspect has a peanut allergy. I am heard to say I intend to bring food with peanuts in the future so they won't steal my food, or if they do we would be able to rule out the expected thief. Critically I don't say I'm trying to punish the thief, but instead with a belief the thief would know and avoid my lunch because it contains peanuts.

I can't booby trap my lunch, but I can bring in food that someone else couldn't eat and not be at fault for a theft if it was not my intent to poison them. The question is where the line is drawn. So lets look at a few scenarios.

1. I bring in something that looks like a ham and cheese sandwich and hide peanut butter inside of it where it can't be seen or detected until eaten.

In this case I'm probably in trouble since the peanuts were clearly there to surprise and punish the thief after the theft.

2. I bring in a peanut butter and jelly sandwich, but put in in a bag that clearly has a warning that the food contains nuts written on it.

In this case I think I'm in the clear. I made every reasonable attempt to warn a thief to avoid injury. Even if my reason for bringing the sandwich in was because I thought it would prevent theft by someone that couldn't eat it since I warned them of the danger ahead of time I'm good.

3. I bring in what looks like a peanut butter and jelly sandwich and don't label it. I've been heard to say that I am choosing to bring it in because I believe the thief won't steal it rather then to punish the thief after the theft.

Here I'm less certain if I'm liable. I'm clearly bringing the sandwich due to the suspected peanut allergy, but I've been heard to say my intent was not to punish the thief but a presumption the thief would know enough not to eat it. Do I have to have gone out of my way to warn the thief, or am I allowed to presume the thief would recognize the sandwich as something they clearly shouldn't eat and avoid it?

4. I pack every meal in a bag that says that the meal may contains nuts, even when it doesn't, to try to trick the thief into not stealing my meal. The thief realizes this and starts stealing my meal despite the warning. Then I happen to bring in something that actually contains nuts one day and the thief has a reaction due to eating it.

I'm not sure if the warning on the bag can be used as justification that I warned them since I know the thief will not believe the warning? Is this any different the scenario 3?

In short, exactly how much work do I need to do to protect my thief before I'm no longer liable?

Answer 1

In common law jurisdictions, this will be a question of fact for a jury to determine. The lawsuit, if brought, would presumably allege some form of negligence. Wex lists the following elements of the (common law) tort of negligence:

• The existence of a legal duty that the defendant owed the plaintiff
• Defendant’s breach of that duty
• Harm to the plaintiff
• Defendant’s actions are the proximate cause of harm to the plaintiff
• Defendant’s actions are the cause-in-fact of harm to the plaintiff

In a case similar to the one described here, the last three bullets are not likely to be disputed, so the matter turns on whether there was a duty of care, and whether the defendant breached that duty. One might argue that the plaintiff and defendant have no contractual relationship, and hence no duty of care exists, but courts have generally found that we owe a duty of care to society at large, to behave reasonably and to avoid creating undue risk to each other. If you act in a way that foreseeably creates risk to another, then you very likely owe a duty of care to that person.

The other side of the coin is breach. If you create a risk, and then take reasonable steps to mitigate or dispel that risk, then you may argue that you have not breached the duty of care, and so there is no negligence. Wex cites United States v. Carroll Towing as an example of how this rule is applied in practice. This opinion sets out the principle that breach is more likely to be found if there was a relatively cheap way of mitigating a relatively severe harm, a relatively probable harm, or (worse) both. Labeling one's food is a relatively cheap measure, and the harm from an allergic reaction could be both severe and probable, so the absence of a label would likely make the case harder to defend. But it is impossible to predict how a jury would come down on any given fact pattern.

Many jurisdictions allow the defendant to raise the defense of comparative negligence, which in layman's terms amounts to saying "the plaintiff was partially at fault for the harm, and damages should be reduced or entirely zeroed out as a result." In this context, that would mean arguing that it was negligent of the plaintiff to eat food with unknown-to-the-plaintiff ingredients when they know they have a serious food allergy. The details of how this works vary by jurisdiction, but will broadly involve asking the jury to determine how much each party was at fault for the incident as a percentage (e.g. "the plaintiff is 30% at fault and the defendant is 70% at fault"), and then (depending on jurisdiction) there will be some set of rules that describes what to do with those numbers. The most straightforward answer is to reduce the damages by the percentage ascribed to the plaintiff (continuing with the prior example, that would mean the plaintiff is compensated for 70% of the total harm caused by the incident, because the plaintiff is notionally at fault for the other 30%). Some jurisdictions will not award damages if the plaintiff is more than 50% or 51% at fault, and a few jurisdictions (which use contributory negligence instead of comparative negligence) will not award damages if the plaintiff is at all at fault.

If the plaintiff thinks they can prove that you poisoned them intentionally, they might allege a battery instead, and then your intent would be a question of fact for a jury. But this jettisons the question of risk and mitigation from our analysis, since the allegation is that you intended to poison the plaintiff rather than doing so by accident. Intentionally poisoning someone will always be tortious, regardless of your likelihood of success (but an unlikely poisoning is less plausibly intentional, and you could argue as much to the jury). In most jurisdictions, an intentional poisoning would also be a crime, but the nature and severity of that crime will vary by jurisdiction and fact pattern (especially how badly the victim was hurt).

In short: In a common law jurisdiction, there are no "bright lines" as the question seems to ask for (except for intent as noted in the previous paragraph). The law merely says that you must be "reasonable."

Answer 2

It comes down to intent

new-south-wales

s39 and s41 of the Crimes Act 1900 criminalise poisoning with the intent to cause grievous bodily harm or kill, or to injure or cause pain respectively.

Poising includes the administration of not just poison, but of any noxious or harmful substance which would capture giving a known allergen to a person you know has that allergy.

So, if you intend for the thief to consume the nuts, or are reckless as to whether they do, you are guilty of one of the two poisoning offences.

In most criminal trials, unless you admit that you did intend to commit the crime, content is inferred by the jury from the entirety of the evidence. All of the scenarios run the risk that the jury will be satisfied beyond reasonable doubt that, notwithstanding your testimony, you did intend consumption and that you are therefore guilty of the crime. Some more than others obviously. Further, if your workplace has a well publicised “no peanut” policy then a) you’re getting fired, and b) you are more likely to be found guilty.

Answer 3

You didn't booby trap your ham and cheese sandwich. You simply stored it next to peanut butter in your refrigerator, and some got on it.

You are not liable for anything, as you were handling the food in a normal way, and were not expecting the food to ever be in anyone else's hands.

You certainly were not preparing the food for sale or distribution - situations in which laws regarding the storing and processing of allergens apply.