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Food delivery apps serve up short-term convenience, but come with risk

Examine the popular service through a legal lens

It’s no secret that convenience is one of the major factors driving our consumer habits; hence, the rapid rise of food delivery services like Skip the Dishes, UberEats and GrubHub.

Locally, many Buffalonians enjoy the convenience of opening an app on their phone, choosing from a variety of restaurants, ordering, and purchasing all from the comfort of their home or office. Customers can even include a tip right in their order, so that when the courier arrives with their meal, they can grab it and go. Overall, these delivery apps have made the process pretty seamless.

But the world of food delivery services can get a little murky when viewed through a legal lens, and there are a handful of risks associated with these apps to be mindful of – whether as a customer, a restaurant owner, or a driver working for one of the delivery companies.

According to Anastasia McCarthy, associate attorney with Hurwitz & Fine, P.C., every food delivery company operates a little differently when it comes to their relationship with the restaurants whose food they deliver and the drivers with whom they work. Some enter into contractual relationships with restaurant owners; others work without a contract and simply deliver food from restaurants (and sometimes grocery stores, retail stores and liquor stores) without the local business’s explicit permission. But working without a written agreement could expose a restaurant or retailer to potential liability, especially when it comes to food or product tampering.

Couriers who work for these delivery services are typically viewed as independent contractors, which adds another layer of ambiguity. Generally, this means the company is not responsible for providing its drivers with the same benefits and protections it would provide regular employees. While there are some exceptions, the independent contractor relationship also frees the delivery companies, in most cases, from liability for any negligence committed by drivers. Ultimately, the independent contractor relationship can leave both drivers and customers vulnerable in the event of an injury.
Regardless of their employment status, the responsibility falls on the driver to obey vehicle and traffic laws. While some companies offer access to specialized insurance coverage for their drivers, others may expect their drivers to purchase commercial coverage on their own. McCarthy recommends that anyone who is considering taking on a gig as a driver for a food delivery service contact their personal insurance agent to better understand if they need to add supplemental coverage.

In regard to personal safety, drivers should also be mindful of the potential to fall victim to a crime. “Often people are under the misassumption that these drivers are carrying money, making them targets for robbery and assault,” McCarthy noted.

Food quality and safety standards are another area where delivery services can foster some uncertainty. While it is understood that the quality of delivered takeout food will vary slightly from food served hot from the kitchen inside the restaurant, the owners of restaurants still have to give consideration to food-safety measures such as temperature control, contamination, and potential food tampering.

“Once the food is out the door, it’s usually outside the control of the restaurant,” McCarthy said. “If someone sustains an injury because they consumed tainted or contaminated food, the question becomes: ‘did the restaurant fail to prevent an injury, or did the problem begin at the restaurant level?’ Liability will depend on what went wrong and on the role of the restaurant, driver, or food delivery service in causing injury.”

To prevent such problems from occurring, McCarthy recommends that restaurant owners educate themselves on how their food is being transported and what steps they can take to prevent any tampering or opportunities for foodborne illness to occur. She notes that, overall, the restaurant industry has made efforts to create tamper-proof containers and those that help maintain safe food temperatures.

“My advice to a restaurant owner is to really examine your process in-house,” McCarthy said. “See if there are any additional safeguards you can put in place to prevent harm from occurring to someone else. If there’s a better way to package your materials, then do it. Ultimately, that’s a risk you have to weigh.”

From the customer standpoint, another potential risk of using an app for purchasing – as is the case with utilizing any web-based service – is the possibility of a data breach and loss of security. The potential for such data breaches raises the question of what responsibility an individual restaurant, and even the delivery company itself, has to notify its customers that a data breach occurred.

Despite the ambiguities, McCarthy acknowledges that risk is a universal reality of life and it shouldn’t utterly deter restauranteurs, drivers, or customers from engaging with these services. It’s safe to say that these apps are becoming a fixture of the modern way restaurants do business, individuals make a living, and customers get their food fix. Ultimately, we just need to be mindful and exercise caution.

“It’s never a bad idea for a restaurant owner to consult a lawyer when making any major change to their business model or making a decision to enter into an agreement with another person or company,” McCarthy said. “It’s important to understand the obligations and liabilities you are taking on and what you can do to mitigate any risks.”

This content is part of a sponsored series in partnership with Hurwitz & Fine P.C.

Written by Sarah Maurer

Sarah Maurer

I moved to Buffalo to attend Canisius College in 2007 and began writing for Buffalo Rising as a journalism intern in 2010. Working with Newell and meeting numerous entrepreneurs, activists and everyday folks who were working to make their city better made a huge impact on my decision to stay here. After witnessing all the positive development and grassroots initiatives happening in neighborhoods throughout the city, I was inspired to pursue a term of service in AmeriCorps and a career in Buffalo's non-profit sector. I currently work in the housing department at the Lt. Col. Matt Urban Human Services Center of WNY and am excited to be a part of their ongoing efforts to revitalize the Broadway Fillmore neighborhood. I also volunteer as the project coordinator for Artfarms Buffalo. I continue to write for Buffalo Rising because I love having the opportunity to stay connected to those working toward positive changes for the Queen City.

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