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NATIONAL SURVEY OF
FOOD LIABILITY
A BREAKDOWN OF CASE LAW
AND STATUTES ON A STATE-BY-STATE
BASIS FOR CLAIMS RELATING
TO FOOD LIABILITY
Presented by:
COUSINEAU McGUIRE CHARTERED
Attorneys at Law
|
Minneapolis Office 1550 Utica Avenue South Suite 600r Minneapolis, Minnesota 55416 (952) 546-8400 (952) 546-0628 (fax) |
N. Wisconsin/Michigan Office 225 East Aurora Street Ironwood, Michigan 49938 (906) 932-0726 (800) 877-866 (906) 932-1688 (fax) |
www.cousineaulaw.com
Table of Contents:
ALABAMA
Reasonable Expectation Test
ALASKA
No Formal Test Established
ARIZONA
Reasonable Expectation Test
ARKANSAS
No Formal Test Established.
CALIFORNIA
Reasonable Expectation Test
Foreign/Natural Test
COLORADO
No Formal Test Established
CONNECTICUT
Reasonable Expectation Test
DELAWARE
Foreign/Natural Test
FLORIDA
Reasonable Expectation Test
GEORGIA
Reasonable Expectation Test
Foreign/Natural Test
HAWAII
Reasonable Expectation Test
IDAHO
No Formal Test Established
ILLINOIS
Reasonable Expectation Test
INDIANA
No Formal Test Established
IOWA
Reasonable Expectation Test
KANSAS
Reasonable Expectation Test
KENTUCKY
No Formal Test Established
LOUISIANA
Reasonable Expectation Test
Foreign/Natural Test.
MAINE
No Formal Test Established
MARYLAND
Reasonable Expectation Test
MASSACHUSETTS
Reasonable Expectation Test
MICHIGAN
No Formal Test Established
MINNESOTA
Reasonable Expectation Test
MISSISSIPPI
No Formal Test Established
MISSOURI
No Formal Test Established
MONTANA
No Formal Test Established
NEBRASKA
No Formal Test Established
NEVADA
No Formal Test Established
NEW HAMPSHIRE
No Formal Test Established
NEW JERSEY
A Form of the Reasonable Expectation Test
NEW MEXICO
No Formal Test Established
NEW YORK
Reasonable Expectation Test
NORTH CAROLINA
Reasonable Expectation Test
NORTH DAKOTA
No Formal Test Established.
OHIO
Reasonable Expectation Test
OKLAHOMA
Reasonable Expectation Test
OREGON
Reasonable Expectation Test
Foreign/Natural Test
PENNSYLVANIA
A Form of the Reasonable Expectation Test
PUERTO RICO
No Formal Test Established
RHODE ISLAND
Reasonable Expectation Test
SOUTH CAROLINA
Case Law Decided in this Area on Other Grounds.
SOUTH DAKOTA
No Formal Test Established
TENNESSEE
No Formal Test Established.
TEXAS
Reasonable Expectations Test
UTAH
No Formal Test Established
VERMONT
No Formal Test Established
VIRGINIA
Foreign/Natural Test
WASHINGTON
Reasonable Expectation Test
WEST VIRGINIA
No Formal Test Established
WISCONSIN
Reasonable Expectation Test
WYOMING
No Formal Test Established
INTRODUCTION
Overall, the main issue for food liability cases is causation. Generally, in claims of food contamination, the plaintiff does not prove causation merely by he or she consuming food and then becoming sick. First inquiry should always be what are plaintiff's symptoms and their potential cause. While most food-related claims are decided on a state-by-state basis, there are different federal laws governing the production, labeling and distribution of food products in interstate commerce. For example, the Federal Meat Inspection Act, 21 USC 601, will preempt food-borne illness claims as well as the Poultry Products Inspection Act, the Ag Products Inspection Act, the Food Drug and Cosmetic Act, and the National Labeling and Education Act. The Federal Meat Inspection Act ("FMIA") can have a significant impact on a Plaintiff's ability to pursue a food-borne illness claim. The USDA created rules in 1994 requiring safe handling labels be placed on all raw meat products sold in interstate commerce. 9 CFR § 317.2(1). However, beyond the meat-related claims dealing with safety relating to the preparation of meat, the federal laws should not come into effect.
Many states have adopted § 402A of the Restatement (Second) of Torts, in which a seller of an unreasonably dangerous food or beverage product who was engaged in the business of selling such products is potentially liable for physical harm caused by consumption of the product. More specifically, Comment i, known as the "consumer expectation" test, establishes that a manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer.
More specifically, the Restatement (Second) of Torts § 402A (2006), states that:
- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
- the seller is engaged in the business of selling such a product, and
- it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
- The rule stated in Subsection 1 applies although
- the seller has exercised all possible care in the preparation and sale of his product, and
- the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Negligence - A jury finding that the plaintiffs' ingestion of a beverage which contained a worm proximately caused the plaintiff's gastric illness was upheld. IIn re Opelika Coca-Cola Bottling Co. v. Johnson, 241 So.2d 331 (Ala.1970).
2. Liability - The court held as a matter of law that a one-centimeter bone found in a fish fillet makes fish neither unfit for human consumption nor unreasonably dangerous. Morrison's Cafeteria of Montgomery, Inc. v. Haddox, 431 S.2d 979 (Ala.App.1983).
3. Breach of Implied Warranty - If a person has a reasonable expectation of finding the injury-causing substance in the food, the seller has not breached the implied warranty that the food is fit for human consumption and not unreasonably dangerous. Carl v. Dixie Co., 467 So.2d 960 (Ala.1985). When Plaintiff bit down on a chicken breast at a Colonel Dixie restaurant, a hard substance broke one of her teeth and lodged in her jaw. She went immediately to a dentist who removed the object. She assumes it was a bone. The court held that one of the examples given in Morrison's, 431 S.2d 979 (Ala.App.1983), of a food which one reasonably expects to find bones was a chicken leg. A chicken breast has more bones that a chicken leg the court found in Carl. Thus, the court did not find the restaurant liable.
4. The court has adopted the "reasonable expectations" test for determining if food is unmerchantable or unreasonably dangerous. Cain, 592 So.2d at 221; Morrison's, 431 So.2d at 978. The pivotal issue is what is reasonably expected by the consumer in the food as served, and the naturalness of the substance to any ingredients in the food served is important only to determine whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served. Morrison's, 431 So.2d at 978. The court found that the reasonable expectations test is compatible with the implied warranty of merchantability.
5. In Flagstar Enterprises, Inc. v. Davis, 709 So.2d 1132, 1134 (Ala.1997), plaintiff sued after discovering human blood in a styrofoam package containing a biscuit with gravy that she purchased from a Hardee's restaurant, which was operated under a franchise agreement with Flagstar. Plaintiff sued under claims of negligence, alleging that the restaurant owed a duty to Davis to exercise reasonable care in the preparation and packaging of her food and had a duty to sell her merchantable food or food that was not unreasonably dangerous. The court held that a Hardee's customer would not reasonably expect to find human blood in a biscuit with gravy. Thus, Hardee's failed to exercise reasonable care in packaging the food.
Illness:
A restaurant keeper warrants that the food which he serves in a restaurant belongs to that class of food which is generally accepted to be fit for ordinary human consumption, and that he has used, in the selection and preparation of his food, that degree of care which the law exacts of those who follow his occupation for a livelihood. Travis v. Louisville & N.R. Co., 62 So.2d 851, 854 (Ala.1913). In Travis, plaintiff was served oysters in a dining car of a train which made him sick.
STATUTES:
Under Ala. Code 1975, § 7-2-314, a consumer can claim for breach of implied warranty of merchantability. Under that code, an implied warranty of merchantability claim requires that plaintiff show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used.
Additionally, plaintiffs can have claims in Alabama for Alabama Extended Manufacturers Liability Doctrine (AEMLD) in the context of allegedly defective food served by a restaurant. As codified in Ala. Code 1975, § 7-2-314, it provides: "1) Unless excluded or modified, a warranty that goods shall be merchantable as implied in the contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premise or elsewhere is the sale." "2) Goods to be merchantable must be at least such as: . . . (c) are fit for the ordinary purposes for which such goods are used..." The AEMLD is not based on a theory of strict liability but retains a fault concept.
No Formal Test Established
There is no case law or statute which specifically deal with food-related issues.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Strict Liability - The plaintiff may be able to establish that a food or beverage product was defective and unreasonably dangerous by showing that the product contained an object or substance whose presence violated a state pure food statute or regulation. Sionsku v. Phoenix Coca-Cola Bottling Co., 499 P.2d 741 (1972).
2. Warranty - In Brown v. General Foods Corp., 573 P.2d 930 (Ariz.App.1978), the plaintiff claimed to have sustained personal injuries as a result of ingesting an "extraordinary" amount of penicillium fungus which was growing on a moldy banana peel at the bottom of a box of grape nuts cereal. The plaintiff alleged personal injuries which included nausea and severe tenderness in the big toe area of the right foot. A verdict for the defendant was found to be supported by medical evidence that the plaintiff's condition was not caused by ingestion of penicillium fungus.
3. Injury - § 402A of the Restatement Second of Torts applies in Arizona, and thus any seller of an unreasonably dangerous food or beverage product who was engaged in the business of selling such products is potentially liable for physical harm caused by consumption of the product. See Slonsky v. Phoenix Coca-Cola Bottling Co., 499 P.2d 741 (1972) [bottler].
4. In Scheller v. Wilson Certified Foods, Inc., 559 P.2d 1074 (Ariz.App.1977) where the ordinary consumer with common knowledge would be aware of the danger in the products and would take steps to eliminate it, the product is not unreasonably dangerous for purposes of product liability. For example, for purposes of strict liability in tort the normal consumption of pork is consumption after proper cooking. Scheller at 1077.
STATUTES:
Ariz. Rev. Stat. § 36-902. The statute defines "adulterated food" as food containing a substance "injuriously affecting its purity," or food which consists wholly or in part of a "filthy, decomposed or putrid," substance.
No Formal Test Established
CASE LAW:
Injury:
1. Negligence - Generally, a retail dealer in food is not a guarantor, but is charged with the exercise of ordinary care to sell sound and wholesome products. It appears that in Arkansas, there are no claims for breach of warranty as applied to the sale of foods. The only claims can be liability by reason of negligence. Generally, the seller of food for human consumption must exercise ordinary care to see that it is reasonably fit for purpose intended. Green v. Wilson, 105 S.W.2d 1074 (Ark.1937).
Reasonable Expectation Test
Foreign/Natural Test
CASE LAW:
Foreign Object:
1. Negligence - California adopted a new test for deciding liability of a restauranteur for injuries caused by harmful substances in food. If the injury producing substance is natural to the preparation of the food, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective. A plaintiff in such a case has no cause of action in strict liability or implied warranty. If, however, the presence of a natural substance is due to the restauranteur's failure to exercise due care and thorough preparation, the injured patron may sue under a negligence theory. If the injury-causing substance is foreign to the food served, then the injured patient may state a cause of action in implied warranty and strict liability, and the trier of fact will determine whether the substance could reasonably be expected by the average consumer, and render the food unfit or defective. Mexicali Rose v. Superior Court, 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (1992).
2. Liability - Unwholesomeness may be proved through scientific analysis of the product. Minder v. Cielito Lindo Restaurant, 67 Cal. App.3d 1003, 136 Cal.Rptr. 915 (Cal.1977). When the product contains a foreign object or substance that is visible, the plaintiff can prove that the product was dangerous or contaminated by introducing the product itself into evidence. Also, when attempting to show through the use of circumstantial evidence that food or drink consumed in a restaurant was unwholesome, the results of tests conducted by the local health department of the restaurant's facilities, personnel, and equipment may be important evidence. To prevail upon causes of action for negligence, breach of implied warranty, and strict liability, a plaintiff generally has to prove that she ate an entree prepared by the restaurant, that the entree was defective, that the defect existed at the time the entree left the restaurant, and that the defect in the product caused injury. Id.
3. Breach of Warranty - Shapiro v. Hotel Statler Corp., 132 F.Supp. 891 (Sd.Cal.1955), fish bone in hot banquette of seafood mornay. See also Silva v. FW Woolsorth Co., 83 P.2d 76 (Cal.App.1938), with turkey bone embedded in dressing on plate of roast turkey. Both cases found no breach of warranty claim where the injury-producing object in food is "natural" rather than "foreign" to the product.
Illness:
1. Liability - Judgment for defendant restaurant owner affirmed where plaintiffs failed to establish that sanitation violations were proximate cause or cause in fact of infectious hepatitis. Beaupre v. Nave, 13 Cal. App.3d 402, 91 Cal. Reptr. 473 (1970).
Miscellaneous: 1. Strict Liability - Generally, a restaurant can be held liable for strict liability for defect claims relating to food served. Livingston v. Marie Callender's Inc., 85 Cal.Rptr2d 528 (Cal. 1999). A restaurant is potentially liable for failure to warn of an ingredient to which a substantial number of the population are allergic (MSG).
STATUTES:
A plaintiff broke her tooth on a piece of bone in a hamburger patty she was eating. Summary judgment in favor of the defendant was reversed because the defendant did not present any evidence to show that the bone particles were of such a size and quantity as to not be injurious to the health of the consumer within the meaning of Section 26520 of the Health and Safety Code and the applicable federal regulations. Evart v. Suli, 259 Cal.Rptr. 535 (Cal.App.1989).
California Civil Code § 1714.45 provides with specified exceptions that a manufacturer or seller is not liable in a product liability action for harm caused by ingestion of common consumer product intended for personal consumption which is inherently unsafe and consumed with ordinary community knowledge of its danger...see, e.g., Richards v. Owens-Illinois, Inc., 14 Cal.4th 1282A, 928 P.2d 1181 (Cal.1997).
Under the Health & Safety Code, a restaurant has a legal duty to come to the assistance of its customer who becomes ill or needs medical attention. West's Ann.Cal. Health & Safety Code § 28689. A restaurant met its legal duty to assist when it summoned medical assistance within a reasonable period of time to assist a patron who was choking. Breauz v. Gino's Inc., 200 Cal.Rptr. 260 (Cal. App. 1984).
No Formal Test Established
CASE LAW:
Illness:
Implied Warranty - Colorado recognizes as a general rule that the retailer who sells unwholesome food for human consumption is liable to a customer for the consequences under an implied warranty imposed by laws as a matter of public policy, even though the food is in sealed containers. Gonzales v. Safeway Stores, Incorporated, 363 P.2d 667, 669 (Colo.1961).
STATUTES:
CRS 53, 121-1-15 (subd. 2) provides: "Where the goods are bought by description from the seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality."
Reasonable Expectation Test
CASE LAW:
Injury:
1. Strict Liability - In a strict liability action against the manufacturer or seller of a food or beverage product for physical harm suffered from ingestion of the product, there are various ways the plaintiff will be able to prove that the product was defective and unreasonably dangerous. One way is by showing that it was contaminated with bacteria or that it caused food poisoning. Wachtel v. Rosol, 271 A.2d 84 (Conn.1970) [egg salad sandwich contaminated by salmonella].
2. Strict Liability - In order to recover from a manufacturer or seller under strict liability for injuries caused by an allegedly defective food or beverage product, the plaintiff must show that the food or beverage is expected to and did reach the plaintiff without substantial change in the condition in which it was sold. Wachtel v. Rosol, 271 A.2d 84 (Conn.1970).
3. § 402A of the Restatement Second of Torts applies in Connecticut, See Wachtel v. Rosol, 271 A.2d 84 (Conn.1970) [restaurant]. The "consumer expectation" standard is well established in Connecticut's strict products liability decisions. Potter v. Chicago Pneumatic Tool Company, 694 A.2d 1319 (Conn.1997).
STATUTES:
§ 4635 of the general statutes discusses the implied warranty that attaches when the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, that the goods shall be reasonably fit for such purpose. Burkhardt v. Armour & Co., 161 A. 385, 389 (Conn.1932).
Additionally, the Sales Act apples, see § 42 A-2-315 Implied Warranty: "Fitness for a particular purpose which gives rights to a warranty on the sale of food from a restaurant to a consumer." In Connecticut, under both common law and the Sales Act, upon the sale of food to be put to domestic uses, there is an implied warranty of wholesomeness and fitness to be eaten, including freedom from foreign substances which may be injurious to the consumer. Burkhardt v. Armour & Co., 161 A. 385.
In an unreported decision, Civitello v. Burger King Corp., 2002 WL 241491, Conn.Super., plaintiff was claiming to have sustained injuries and losses as a result of a prick to the inside of his mouth from a broken off piece of hypodermic needle in a breakfast sandwich he purchased and ate at a Burger King restaurant. His complaint was based on the Connecticut Product Liability Statute, Connecticut General Statutes § 52-572.
Foreign/Natural Test
CASE LAW:
Illness:
1. Warranty Claims - Plaintiff brought an action against the seller of fresh pork sausage because of plaintiff's contracting trichinosis from the sausage. The plaintiff's breach of warranty of fitness claim was dismissed as a matter of law, because the scope of warranty given by a seller of fresh pork is that the product for its ordinary and intended purpose, eating after proper cooking. There was no indication here that the pork was unfit for cooking or that it was unreasonably dangerous. Trabaudo v. Kenton Ruritan Club, Inc., 517 A.2d 706 (Del.Super.1986).
Foreign Object:
1. Negligence - At a restaurant plaintiff ordered dinner which included a dish of coleslaw. While she was eating her coleslaw, she experienced sudden pain in her upper right jaw and found a sliver of metal which had been concealed in the coleslaw. Plaintiff alleged negligence predicated upon the doctrine of "res ipsa loquitur." Plaintiff sufficiently showed that the conclusion of negligence is the only reasonable inference possible from the circumstances. Pappa v. F.W. Woolworth Co., 33 A.2d 310 (Del.1943).
2. Liability - A restaurant proprietor must use due care to see that food is wholesome and free from injurious substances. Roseberry v. Wachter, 138 A. 273 (Del.1925).
STATUTES:
Delaware does not at this time invoke warranty provisions of the Sales Act. Dickens v. Hardart Bank Co., 209 A.2d 169, 170-171 (Del.1965). The rule in Delaware is still that a claim against a restaurant should be a claim for negligence, not based upon their liability as "insurers." Id. 312.
Uniform Deceptive Trade Practices Act, 6 Del.C. §§ 2531-2536, deals with wholesome foods. Pure Food and Drug Act, 16 Del.C. § 3304- dealing with sale of adulterated food: "Food is deemed to be adulterated: (6) If it consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance or any portion of an animal unfit for food."
Reasonable Expectation Test
CASE LAW:
. § Foreign Object:
1. Reasonable Expectation Test - Consumer injured molar when she bit down on a piece of clam shell found in a can of clam chowder. Court found that it is reasonable to expect to find "[a]n occasional piece of claim shell in a bowl of clam chowder . . . ." Id. at 873. Maker of the chowder and the grocery store were found not liable. Koperwas v. Publix Supermarkets, Inc., 534 So.2d 872 (Fla. Dist. Ct. App. 1988).
2. Negligence - Consumer dissolved donut in milk because of an abscessed tooth and, while drinking the milk from a straw, a piece of wire from the doughnut lodged in her throat. Court found that the plaintiff was not comparatively negligent for not chewing her doughnut. "In a breach of an implied warranty action based on the presence of a harmful substance in food, the test of whether the presence of the harmful substance constitutes a breach of implied warranty is whether the consumer can reasonably expect to find the substance in the food as served.". Coulterv. American Bakeries Co., 530 So.2d 1009 -1011 (Fla. Dist. Ct. Appl. 1988).
3. Negligence, Strict Liability, Breach of Implied Warranty - Consumer found a large insect floating in a can of peas, jumped back in alarm, fell and injured herself. The court found that the impact rule barred the consumer's action based on negligence, strict liability, and breach of warranty grounds. "When a claim is based on an inert foreign object in a food product, we continue to require ingestion of a portion of the food before liability arises." Doyle v. Pillsbury Co., 476 So.2d 1271 - 1272 (Fla. 1985).
4. Liability - Consumers of beverage that appeared to contain a used condom suffered from nausea and became concerned regarding what they had ingested. The court held "that a plaintiff need not prove the existence of a physical injury in order to recover damages for emotional injuries caused by the consumption of a contaminated food or beverage. . ." "[T]hose who market foodstuffs should foresee and expect to bear responsibility for the emotional and physical harm caused by someone consuming a food product that is contaminated by a foreign substance." Hagan v. Coca-Cola bottling Co., 804 So.2d 1234, 1241 (Fla. 2001).
5. Negligence - Consumer discovered foreign substance that resembled a rat without hair in his soft drink bottle and, consequently became nauseated and vomited. Directed verdict based on the impact rule was overturned. Court adopted rule that where there is a fair preponderance of evidence of a proximate causal relationship between a negligent act and a reasonably foreseeable mental and emotional reaction by a foreseeable plaintiff, proven damages are compensable. There must be, however, a physical impact or objective physical symptom in response to the foreign substance. Way v. Tampa Coca Cola Bottling Co., 260 So.2d 288 (Fla. Dist Ct. App. 1972).
Food Poisoning:
1. Liability - This case dealt with burden of proof. Consumer suffered from shigella as a result of ingesting contaminated food. She alleged that the contaminated food was from the defendant but did not have the food analyzed. Court found that there should be no directed verdict for the defendant because, although the plaintiff has the burden to establish it was poisoned by the defendant's food, exact proof is not required, reasonable certainty can be shown. Gant v. Lucy Ho's Bamboo Garden, Inc., 460 So.2d 499 (Fla. Dist. Ct. App. 1984).
2. Liability - Restaurant proprietors must be held to the same degree of duty as food retailers regarding wholesomeness of the food provided for and paid for by guests. Cliett v. Lauderdale Biltmore Corp., 39 So.2d 476 (Fla. 1949).
STATUTES:
West's F.S.A. § 500.04. Prohibited acts.
West's F.S.A. § 500.10. Food deemed adulterated.
West's F.S.A. § 500.13. Addition of poisonous or deleterious substance to food.
Reasonable Expectation Test
Foreign/Natural Test
CASE LAW:
Burns:
1. Strict Liability - Restaurant which sold coffee to customer was not "manufacturer" of coffee, but rather restaurant's role was limited to one of "product seller" and thus, under Georgia law could not be held strictly liable in products liability for burns a child sustained when coffee spilled on him, where restaurant leased coffee maker and merely prepared, blended, packaged, and sold coffee pursuant to lessor's directions. Barnett v. Leiserv, Inc., 968 F.Supp. 690, affirmed 137 F.3d 1356 (Ga.1997).
Miscellaneous:
1. Strict Liability - Under Georgia law, entity that labels and markets product as its own is no longer subject to strict liability as "ostensible manufacturer." Freeman v. United Cities Propane Gas of Georgia, Inc., 1992, 807 F.Supp. 1533.
Illness:
1. Illness alone cannot establish cause of action for sale of unwholesome food; a mere showing that a person became sick subsequent to eating food is insufficient. Worthy v. Beautiful Restaurant, Inc., 2001, 556 S.E.2d 185.
Foreign Object:
1. Food Act does not insulate from liability restaurants which serve customers hidden, disgusting objects merely because the customer does not actually eat the object or the object subsequently tests benign. Chambley v. Apple Restaurants, Inc., 1998, 504 S.E.2d 468.
2. Negligence/Breach of Warranty - Customer brought action against fast food restaurant for negligence, negligence per se and breach of implied warranty of merchantability for selling french fries that were allegedly contaminated with blood. Wilson v. J & L Melton, Inc., 270 Ga.App. 1, 606 S.E.2d 47 (2004).
STATUTES:
Georgia has several statutes that relate to the sale of food and products liability. Under Georgia statute, Sec. 51-1-1.1, a product seller is not considered a manufacturer of a product and therefore, cannot be held strictly liable in a products liability action.
Georgia also has a statute covering the sale of unwholesome provisions that provides as follows: "any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury." Sec. 51-1-23.
In addition to the above cited statues, Georgia has also enacted a Food, Drug and Cosmetics Statute covering the manufacture, sale and labeling of food. The act prohibits the sale of any food that is adulterated or misbranded. See Sec. 26-2-22. Penalties for violating this act can include a fine of up to $1,000 or imprisonment in a county jail for up to 12 months. However, a person can limit liability under this Code if they have obtained a guaranty from the person they received the food item from stating to the effect that the item is not adulterated or misbranded.
Reasonable Expectation Test
CASE LAW:
Hawaii restaurant liability is generally governed by the Restatement (Second) of Torts § 402A (2006). A seller is strictly liable to the consumer even though it has exercised all possible care in the preparation and sale of the product where the product is defective or unreasonably dangerous to the consumer. Restatement (Second) of Torts § 402A; see Kaneko v. Hilo Coast Processing, 654 P.2d 343, 346, 353-54 (HI 1982) (discussing adoption and application of the Restatement where injuries sustained by plaintiff who fell while a mill building was being erected). Comparative negligence principles apply and contributory negligence of a plaintiff only diminishes but does not bar recovery. Id. at 353-54.
No Formal Test Established
There is no case law or statute which specifically deal with food-related issues.
Reasonable Expectation Test
CASE LAW:
Illness:
1. Strict Liability - A seller is strictly liable to the consumer even though it has exercised all possible care in the preparation and sale of the product where the product is defective or unreasonably dangerous to the consumer. Restatement (Second) of Torts § 402A; see Huebner v. Hunter Packing Co., 375 N.E.2d 873, 876 (Ill. Ct. App. 1978) (buyers of raw pork brought action against distributor and retailer of raw pork, after contracting trichinosis).
2. Causes of action for breach of implied warranty, strict products liability and negligence properly lay against the manufacturer of an article of food or drink intended for human consumption and sold in a sealed container. Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547, 550 (Ill. 1992).
Choking:
1. Liability - Restaurant could not be held liable for civil damages as result of failing to assist in removing food from patron's throat as he was choking, either under common law or under Choke-Saving Methods Act, which provided that no liability exists for either attempting to help or failing to help choking person in restaurant. Parra v. Tarasco, Inc., 595 N.E.2d 1186, 1189 (Ill. Ct. App. 1992) (wrongful death action was brought against restaurant after patron choked on food).
2. Liability - Restaurant's failure to post instructions concerning method of first aid assistance to choking persons as required under the Choke-Saving Methods Act did not subject restaurant to civil liability; Act's purpose was to encourage voluntary aid by removing fear of potential liability and thus private cause of action would not be conducive to effectuating purpose of statute. Parra v. Tarasco, Inc., 595 N.E.2d 1186, 1190 (Ill. Ct. App. 1992).
3. Negligence - Violation of statute or ordinance designed for protection of human life or property can be prima facie evidence of negligence, but injury must have direct and proximate connection with violation. Parra v. Tarasco, Inc., 595 N.E.2d 1186, 1191 (Ill. Ct. App. 1992).
4. Negligence - At common law, restaurants have never been required to post trained guards in anticipation of a patron's choking, i.e., his suffering an injury directly related to eating-the purpose of the existence of the restaurant. As a general rule, a restaurateur is not an insurer of his customers' safety against all personal injuries. He has no duty as to conditions or risks which are ordinary and are, or should be, known or obvious to the patrons. Parra v. Tarasco, Inc., 595 N.E.2d 1186, 1188 (Ill. Ct. App. 1992).
Food Poisoning:
1. Negligence - An inference of negligence must be based on something more than mere conjecture or speculation, and evidence of facts simply consistent with, or indicating mere possibility of, negligence, or suggesting with equal force, and leaving fully as reasonable, an inference of non-existence of negligence, is insufficient to warrant inference of negligence, which must be the more probable and reasonable inference to be drawn from evidence. Shaw v. Swift & Co., 114 N.E.2d 330, 334 (Ill. Ct. App. 1953).
2. Breach of Warranty - Where one is damaged by a breach of warranty, he has a choice of two remedies. He may bring an action, based upon the alleged wrongful act of the defendant in committing the breach, or he may bring an action in assumpsit based upon the contractual relation existing and the defendant's failure to fulfil his express or implied promise of warranty. A restaurant keeper is liable under an implied warranty that the food he supplies is wholesome and fit to be eaten, and he is liable for damages if the food proves otherwise, whether he was negligent or not. Greenwood v. John R. Thompson Co., 1919 WL 1531, at *2 (Ill. Ct. App. 1919) (customer died after purchasing and eating poisonous food from restaurant).
Foreign Object:
1. Strict liability, in theory, is intended to apply to all products placed in the stream of commerce regardless whether they have undergone some processing or not. Accordingly, a supplier of poisonous mushrooms which are neither cooked, canned, packaged nor otherwise treated is subject to strict liability. Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547, 551 (Ill. 1992).
2. Breach of Warranty - In Illinois, the state of the art has never been a defense to strict products liability. Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547, 550 (Ill. 1992) (plaintiff who allegedly broke tooth on hard pecan shell while biting into chocolate-covered pecan-caramel candy brought suit against candy manufacturer, asserting count based on breach of warranty theory and count based on products liability).
3. Strict Liability - Where article of food or drink, intended for human consumption, is sold in a sealed container, theory of strict products liability is available where a "defect" exists in the goods produced. However, the mere fact that injury occurs in consumption of the product does not alone raise a presumption, or otherwise create an inference, entitling the consumer to recover against the manufacturer. Warren v. Coca-Cola Bottling Co. of Chicago, 519 N.E.2d 1197, 1201-02 (Ill. Ct. App. 1988) (plaintiff alleged that the can of Coca-Cola plaintiff consumed was contaminated with "a dangerous amount of streptococci fecalis.").
4. Strict Liability - Food processors and manufacturers are subject to "reasonable expectation" test that, regardless whether substance in food product is natural to ingredient thereof, liability will lie for injuries caused by the substance where the consumer of the product would not reasonably have expected to find the substance in the product; "foreign-natural" doctrine is no longer applicable. Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547, 548-49 (Ill. 1992).
5. Liability - Plaintiffs must prove (1) that the plaintiff's injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time the product left the defendant's control. Consolino v. Thompson, 468 N.E.2d 422, 424 (Ill. Ct. App. 1984) (Action was brought against manufacturer of bakery products and supplier of chocolate syrup used in the products to recover for personal injuries sustained by plaintiff when a metal object apparently contained in bakery product that plaintiff had ingested became embedded in her throat).
6. Breach of Implied Warranty - Every seller of food makes implied warranty of quality, and purchaser of deleterious food has remedy against either person from whom food was last purchased or against any prior seller. Williams v. Paducah Coca Cola Bottling Co., 98 N.E.2d 164, 168 (Ill. Ct. App. 1951) (Action for injuries allegedly sustained as the result of drinking from a bottle containing a foreign substance).
7. Breach of Implied Warranty - Where an article of food or drink intended for human consumption is sold in a sealed container, an implied warranty is imposed on the manufacturer that the article is wholesome and was fit for consumption when it left the manufacturer's control. However, since a manufacturer is not required to warrant that no one will tamper with or adulterate the product before it comes into the hands of the final purchaser, the injured consumer, in order to recover, must prove that the condition of the product when it left the control of the manufacturer was the same as immediately prior to its consumption, or that it had not been adulterated in the meanwhile. Haynes v. Coca Cola Bottling Co. of Chicago, 350 N.E.2d 20, 25 (Ill. Ct. App. 1976) (person, who assertedly became ill after drinking can of soft drink purportedly containing paper and aspergillus niger fungus, brought action to recover against canner on theories of negligence and breach of warranty).
8. Negligence - While ordinarily it is necessary to resort to medical testimony to prove a causal connection between the occurrence complained of and the alleged injury or illness, such is not the rule where, as here, the causal connection is clearly apparent from the illness itself and the circumstances attending it. The facts of the case may establish negligence where the plaintiff can point to no specific act establishing it. Patargias v. Coca-Cola Bottling Co. of Chicago, 74 N.E.2d 162, 165-66 (Ill. Ct. App. 1947) (injuries sustained when plaintiff drank a beverage from a bottle which contained a dead mouse).
Spoilation:
1. Breach of Implied Warranty - By furnishing food to general public, manufacturer and retailer both impliedly warrant that product is fit for human consumption at time it leaves their respective control, and when food proves to be deleterious, either or both may be required to respond in damages to injured consumer. Tiffin v. Great Atlantic & Pacific Tea Co., 162 N.E.2d 406, 411 (Ill. 1959) (action against grocery store owner and meat packer for death allegedly caused by eating of unwholesome ham that was purchased from grocery store and that had been processed by packer).
2. Breach of Implied Warranty The law imposes upon a restaurant keeper an implied warranty that the food he serves and sells to his patrons is wholesome and fit to be eaten, and he will be liable if it proves otherwise, whether he was negligent or not. To make out case for plaintiff in personal injury suit, circumstantial evidence impelling mind to make certain deductions is sufficient. Duncan v. Martin's Restaurant, 106 N.E.2d 731, 733 (Ill. Ct. App. 1952) (action for personal injuries as alleged result of eating unwholesome food in defendant's restaurant).
Burns:
Liability - Coffee shop had a duty to the general public to provide structurally sound cups, to properly place the lids on the cups, and to serve coffee at a reasonable temperature. Alter v. Starbucks Corp., 2006 WL 2947542, at *4 (Ill. Ct. App. Oct. 10, 2006) (consumer filed a claim against coffee company after a cup of hot coffee she had purchased at company's store collapsed and burned her hands).
No Formal Test Established
STATUTES:
Indiana does not appear to have any case law relevant to restaurant liability. Indiana code 34-20-4 governs defective products:
Defective Products:
1. A product is in a defective condition if, at the time it is conveyed by the seller to another party, it is in a condition: (1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and (2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
2. A product is defective if the seller fails to: (1) properly package or label the product to give reasonable warnings of danger about the product; or (2) give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer.
3. A product is not defective if it is safe for reasonably expectable handling and consumption. If an injury results from handling, preparation for use, or consumption that is not reasonably expectable, the seller is not liable.
4. A product is not defective if the product is incapable of being made safe for its reasonably expectable use, when manufactured, sold, handled, and packaged properly.
Indiana Code 34-20-5 states that there is a rebuttable presumption against finding product defects. In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product: (1) was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or (2) complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.
Reasonable Expectation Test
CASE LAW:
Food Poisoning:
1. Breach of Implied Warranty - A dealer who sells food for consumption impliedly warrants that it is fit for the purpose for which it is sold. If, in addition to this implied warranty, it is found that he was negligent in selling food that was dangerous to those who ate it, he would be liable for the consequences of his act if by proper care on his part he could have known of its condition. Davis v. Van Camp Packing Co., 176 N.W. 382, 389 (IA 1920) (allegation that as a result of eating canned pork and beans, plaintiff sustained damage by reason of ptomaine poisoning because of poisonous, deleterious, noxious, and unwholesome substances.)
2. Breach of Implied Warranty - Where articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk. Davis v. Van Camp Packing Co., 176 N.W. 382, 389 (IA 1920).
Foreign Object:
1. Breach of Implied Warranty - Common-law warranty protects restaurant patrons against food that is unfit for human consumption and against having foreign objects in the food. Meat served with the bones in are not unfit for human consumption and because bones are naturally contained in meat, they do not constitute a foreign object. A restaurant owes no duty to its patrons to serve meat that is entirely free of bones that are natural to the product. Kolarik v. Cory Intern. Corp., 721 N.W.2d 159, 164 (IA 2006) (summarizing Brown v. Nebiker, 296 N.W. 366 (1941), where a restaurant patron died after swallowing a bone while eating a pork chop).
2. Liability - The "foreign-natural" test is not logical or desirable. The expectation is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl, or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test is what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. Kolarik v. Cory Intern. Corp., 721 N.W.2d 159, 165 (IA 2006) (citing Betehia v. Cape Cod Corp., 103 N.W.2d 64, 68-69 (1960)).
3. Iowa has adopted the Restatement (Second) of Torts § 402A.
STATUTES:
A person who is not the assembler, designer, or manufacturer, and who wholesales, retails, distributes, or otherwise sells a product is immune from any suit based upon strict liability in tort or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product. Iowa Code § 613.18(1)( a ).
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Strict Liability - A seller is strictly liable to the consumer even though it has exercised all possible care in the preparation and sale of the product where the product is defective or unreasonably dangerous to the consumer. Restatement (Second) of Torts § 402A; see Hazelton v. Safeway Stores, Inc., 745 P.2d 309, 312 (Kan. Ct. App. 1987) (discussing adoption of Restatement - strict liability action against store chain for injury sustained by a customer when he swallowed a needle that was in bread baked and retailed by the chain).
Food Poisoning: 1. Negligence - A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. Practically he must know it is fit or take the consequences, if it proves destructive. The usual rule by which the existence or absence of negligence is to be determined in a particular case is whether the care exercised was commensurate with the danger reasonably to be apprehended. Parks v. G.C. Yost Pie Co., 144 P. 202, 203 (Kan. 1914) (person died from ptomaine poisoning after eating a pie containing deleterious ingredients or poison. Manufacturer sold pie to retail grocery merchant, who sold to the deceased. Allegations made that defendants aided and abetted each other in placing the pie upon the market and were negligent in the manufacture and methods of handling the pie).
2. Negligence - If a person keeping a public restaurant fails to exercise ordinary care in furnishing food to his patrons and damages result, he would be liable if his business be conducted in a careless or negligent manner and through such negligence a patron is injured. Malone v. Jones, 142 P. 274, 276 (Kan. 1914) (Farming family provided board for farm workers. Family purchased, cooked, and served meat which was tainted and unwholesome).
No Formal Test Established
CASE LAW:
Choking:
1. Liability - Patrons are not entitled to recover from restaurant and food distributors where the patrons are unable to state what caused them to choke. Brown v. Cunningham, 357 S.W.2d 36, 36-37 (Ky. 1962) (declining to address issue of whether restaurant owner could be held liable for damages where plaintiff could not prove that she choked on fish bone in "boneless" fillet).
Food Poisoning:
1. Negligence - For purposes of products liability actions, product is "defective" if it does not meet reasonable expectations of ordinary consumer as to its safety; this amounts to saying that if seller knew of condition, he would be negligent in marketing product. By statute (KRS 411.340), if the manufacturer is subject to the court's jurisdiction, and if the retailer sold the product in the same condition as it received it, then the retailer shall not be subject to products liability unless it breached an express warranty or knew or should have known at the time of distribution or sale of such product that the product was in a defective condition unreasonably dangerous to the user or consumer. A retailer can forfeit immunity under the statute by failing to pass on a manufacturer's warning to consumers. Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 15, 17 (Ky. Ct. App. 2003), as modified (Sept. 19, 2003), review denied (Aug. 18, 2004) (consumer ate raw oysters from a seafood bar restaurant and became ill with a bacterial invasion of his blood stream).
2. Liability - Injured persons must introduce evidence of probative value indicating that food in question, or some poisonous substance in them, caused the illness. Rutherford v. Modern Bakery, 310 S.W.2d 274, 275-76 (Ky. 1958) (action for damages allegedly sustained by plaintiff as the result of having consumed poisonously contaminated pies sold by defendant bakery).
3. Negligence - Manufacturer, packer, or bottler of food or beverages is directly liable to consumer for injury caused by unwholesomeness of such articles purchased from retailer. Where unwholesomeness of food or beverages does not ordinarily happen in absence of negligence of manufacturer, packer, or bottler, res ipsa loquitur rule applies in favor of injured consumer. Liggett & Myers Tobacco Co. v. Rankin, 54 S.W.2d 612, 612-13 (Ky. Ct. App. 1932).
Foreign Object:
1. Negligence - Res ipsa loquitur is based on the principle that in the ordinary course of things, an injury would not have occurred absent negligence by the defendant. Res ipsa loquitur does not apply where there is proof of an opportunity for pranks or tampering with a food product. Davis Red Rock Bottling Co. v. Alsip, 287 S.W.2d 594, 595 (Ky. 1956) (action by consumer against bottling company for injuries allegedly received in drinking beverage from a bottle which contained a thin strip of rolled metal).
2. Liability - One who manufactures provisions for domestic consumption and sells directly to the consumer is bound at his peril to know that they are sound, and if by reason of their unsoundness the purchaser is injured the seller cannot escape liability by proof that he had been extraordinarily careful in the preparation of the provisions. Kroger Grocery & Baking Co. v. Schneider, 60 S.W.2d 594, 595 (Ky. Ct. App. 1933) (injury to customer from foreign substance in bread).
Spoilation:
Breach of Implied Warranty - A vendor of provisions, selected, sold, and delivered by the retailer in a visible condition to the purchaser for his immediate domestic use, under the common (now statutory) law, is bound to know at his peril that the same is sound and wholesome and fit for immediate use; and if it turns out to be unsound and not wholesome, and the purchaser is injured thereby, the seller is liable to him therefor, and the purchaser in so using it does not assume the risk. Great Atlantic & Pacific Tea Co. v. Eiseman, 81 S.W.2d 900, 902 (Ky. Ct. App. 1935) (customer entitled to recover under doctrine of implied warranty for illness resulting from eating chicken where chicken was ordered from grocer by telephone without opportunity for inspection before delivery).
Reasonable Expectation Test
Foreign/Natural Test
Louisiana has a large and complicated body of law governing liability for food and beverage claims. The law consists of civil code and case law. Below are some examples of each. A seller is strictly liable to the consumer even though it has exercised all possible care in the preparation and sale of the product where the product is defective or unreasonably dangerous to the consumer. Restatement (Second) of Torts § 402A.
CASE LAW:
Food Poisoning:
1. Negligence - In establishing liability for the consumption of deleterious food, the plaintiff must prove the product was in a deleterious condition when purchased and caused his illness. The plaintiff bears the burden of proving a causal relationship between the consumption of the food and the complained of injuries. Although a plaintiff need not scientifically identify the infection-producing organism to recover in a food poisoning case, he must still prove causation by a preponderance of the evidence. See e.g., Burnett v. Essex Ins. Co., 773 So.2d 786, 789, 790 (La. Ct. App. 2000) (restaurant patrons sued restaurant, alleging they had contracted food poisoning from spoiled food at restaurant).
2. Negligence - To establish liability of manufacturer for damages which result from consumption of prepared foods, plaintiff must prove: (1) that defendant's product contained deleterious substance, (2) that substance was consumed by plaintiff, and (3) that as a result of consumption, plaintiff sustained injury. Cooper v. Borden, Inc., 709 So.2d 878, 881 (La. Ct. App. 1998) (consumer sued seller of milk, alleging she had allergic reaction after drinking penicillin-contaminated milk).
3. Liability - Nonmanufacturing seller is not presumed to have knowledge of defect in products. Ard v. Kraft, Inc., 540 So.2d 1172, 1177 (La. Ct. App. 1989) (consumer of margarine brought action against manufacturer of margarine and retailer for injuries allegedly sustained following ingestion of margarine).
4. The principle of legal fault or strict liability underlies articles 2317-22 of the civil code. When harm results from the conduct of a person or defect of a thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former's part is proved. The injured person must prove the vice (i.e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and the damage resulted from this vice. Once this is proved the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Simeon v. Doe, 618 So.2d 848, 850-51 (La. 1993).
5. Liability - Plaintiffs' burden is to establish by a preponderance of evidence that the meat was in a deleterious condition when purchased and caused their illnesses. In action for damages based on eating of deleterious food, a plaintiff need not negate every conceivable cause nor produce a scientific analysis of the alleged contaminated food; proof must only show that it was more likely than not that the alleged deleterious food caused the illness. Jackson v. Winn Dixie Stores, Inc., 439 So.2d 1147, 1148 (La. Ct. App. 1983).
Foreign Object:
1. Negligence - Restaurants owe a duty owed to the general public to act as a reasonably prudent restauranteur in selecting, preparing, and cooking of food, including the removal of injurious substances. Bullara v. Checker's Drive-In Restaurant, Inc., 736 So.2d 936, 938-39 (La. Ct. App. 1999) (customer who bit into a cockroach in a chili dog sued restaurant for damages. Restaurant negligently allowed a roach to enter food and/or failed to discover it and served it to patron who took the food home and discovered the roach).
2. Negligence/Breach of Implied Warranty - Louisiana Products Liability Act (LPLA), establishes the exclusive theories of recovery against manufacturers for damage caused by their products. Cain v. Winn-Dixie Louisiana, Inc., 757 So.2d 712, 714 (La. Ct. App. 1999) (action seeking damages from store due to negligence and breach of implied warranty of fitness where cake contained a hair, which allegedly made customer sick).
3. The "foreign-natural" test is applicable to determine the liability of a seller of food where a substance in the food presents a potential danger to all persons. Under the "foreign-natural test," if the harmful substance is foreign, the defendant is strictly liable, and the analysis stops. A natural substance has been held to include instances where the product does not undergo the manufacturing process and an object with the potential to cause injury remains in the product. An example of this type of situation is the pearl in a fried oyster. However, when a product undergoes the manufacturing process and is marketed as a particular type of product, a foreign substance is any substance not associated with that finished product. Thus, a "fish eye lens," although natural to a tuna fish, is not considered a "natural" object in a can of tuna. Likewise, a piece of bone is a "foreign" object in a manufactured boneless chicken breast. Hickman v. Wm. Wrigley, Jr. Co., Inc., 768 So.2d 812, 816 (La. Ct. App. 2000) (buyer of chewing gum brought action for damages against manufacturer for injuries sustained when he chewed a stick of gum that allegedly contained a small metal screw).
4. Negligence - To determine whether a defendant is negligent, the case usually requires proof of five separate elements: (1) duty; (2) breach of duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and (5) damages. A defendant's duty to conform his conduct to a specific standard may be express or implied, either statutorily or jurisprudentially. A food provider, in selecting, preparing, and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food. Porteous v. St. Ann's Cafe & Deli, 713 So.2d 454 (La. 1998) (diner brought action against restaurant for injuries he sustained to his tooth when he bit into pearl contained in oyster).
5. Liability - The general rule in Louisiana regarding liability for damages which result from the consumption of prepared foods is that the plaintiff must prove that the defendant's product contained a deleterious substance, that the substance was consumed, and that as a result of the consumption, the plaintiff sustained an injury. Rouse v. George A. Hormel & Co., 339 So.2d 1320, 1321 (La. Ct. App. 1976) (in suit against packer to recover for injuries suffered as result of plaintiffs' illness occurring several hours after plaintiffs ate luncheon meat canned by defendant, plaintiffs failed to prove that consumption of defendant's product, which allegedly contained sliver of glass, was the cause in fact of illness).
6. Breach of Implied Warranty - Manufacturer/seller of foodstuffs is bound to warrant their wholesomeness, and lack of knowledge of qualities of foodstuffs is imputed to him as a fault, rendering him liable to purchaser for any vices or defects in the food. Although vendor of a thing implicitly warrants that it is fit for purpose for which it is intended, he cannot become liable in damages unless it is shown that he knows or should know of the defect existing therein. Reid v. Clearfield Cheese Co., Inc., 307 So.2d 115, 117 (La. Ct. App. 1975) (child allegedly ate cheese which had glass in it).
Spoilation:
1. Breach of Implied Warranty/Negligence - In a food product case, the traditional duty risk tort analysis will determine the restaurant's liability. Under this analysis, the plaintiff must show that 1) defendant owed a duty of care to the plaintiff; 2) the risk of harm was within the scope of protection afforded by the duty; 3) defendant breached that duty; and 4) the conduct in question was a cause-in-fact of the harm. The restaurant must act as a reasonably prudent man skilled in the culinary art when selecting, preparing and cooking food. Anderson v. Piccadilly Cafeteria, Inc., 804 So.2d 75, 77 (La. Ct. App. 2001) (customer sued restaurant alleging breach of warranty or negligence following her illness after she ate a discolored fruit salad).
STATUTES:
Louisiana has Civil Codes relating to negligence and unreasonably dangerous food claims. See Louisiana Statutes Civil Code Arts. 2315, 2316, 2475, 2545; Louisiana Revised Statutes 9:2800.55, 9:2800.57
1. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. L.S. Art. 2315.
2. Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill. L.S. Art. 2316.
3. The seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing. The seller also warrants that the thing sold is fit for its intended use. L.S. Art. 2475.
4. A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. L.S. Art. 2545.
5. A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer. La. R.S. 9:2800.55.
No Formal Test Established
CASE LAW:
Foreign Object:
1. Negligence - Family members drank a bottle of Sunset Ginger Ale. In the bottom of the bottle an old dirty brush and something like rust was found. Thereafter, some of the family members became seriously ill. This was not a case of res ipsa loquitur but an inference of negligence was possible. The proof in negligence cases may raise a presumption of negligence and then the burden shifts to the defendant for explanation. In some negligence cases, evidence indicating carelessness, if not satisfactorily explained, may be conclusive. Negligence may be established by circumstantial evidence. Lajoie v. Bilodeau, 93 A.2d 719 (Me. 1953).
2. Breach of Implied Warranty - Consumer purchased a sealed plastic bag containing frankfurts from the defendant's supermarket. Upon eating one of the frankfurts, the consumer bit down on a piece of glass. Later three small glass slivers were removed from his mouth. This case could move forward on an action based on an implied warranty of merchantability. Sams v. Ezy-Way Foodliner Co., 170 A.2d 160 (Me. 1961).
Food Poisoning:
Negligence - Consumer ate the defendant's asparagus served on toast and soon thereafter became violently ill. The can of asparagus was purchased by a company agent, was a well-known brand, and guaranteed pure under the Pure Food and Drug Act of 1906. The consumer brought suit claiming the asparagus was negligently prepared, unwholesome, and poisonous, all of which the defendant should have known. The court found that the defendant was not an insurer of the quality of canned goods and was not liable for injuries to a consumer eating the canned good bought from a reliable dealer and guaranteed pure where it contained no defect that was observable. Bigelow v. Maine Cent. R. Co., 85 A. 396 (Me. 1912).
STATUTES:
ME St. T. 22 § 2155-A. Prohibitions and penalties: adulteration or misbranding of foods is prohibited.
ME St. T. 22 § 2156. Adulteration: defines what foods are considered adulterated
ME St. T. 22 § 2158. Addition of certain substances limited.
Reasonable Expectation Test
CASE LAW:
Injury:
Negligence - The court found that the customer was entitled to have the doctrine of res ipsa loquitur applied against the retailer but not the manufacturer for injuries by a customer brought against a retailer and bottler for injuries sustained by a customer when a soft drink bottle exploded. The court also discussed that between the bottler and customer a warranty of merchantability did exist. Giant Food, Inc. v. Washington Coca-Cola Bottling Company, Inc., 332 A.2d 1 (Md.App.1975).
Foreign Object:
1. Negligence/Breach of Warranty - A claim against the manufacturer for injuries sustained by a child was actionable on negligence and for a breach of warranty when a small chicken bone lodged in her esophagus while she was eating chow mein. The Maryland Court found that the packer of food products in a sealed container represents to the consumer that the contents of the can are suited for the purpose for which intended. Bryer v. Rath Packing Company, 156 A.2d 442 (Md.App. 1959).
2. Negligence - In a claim for injuries resulting from drinking a bottle of soft drink bottled by defendant and purchased at a gas station, the court determined that a manufacturer of an article for human consumption is not an insurer, but he is bound to exercise reasonable care commensurate with his undertaking to see that no injurious substance gets into containers in which he places his product and burden is upon manufacturer to provide absence of injurious substance. Cloverland Farms Dairy, Inc. v. Ellin, 75 A.2d 116 (Md.App. 1950).
3. Plaintiff brought a claim against manufacturer for injuries sustained when plaintiff ate a can of corned beef. Plaintiff had the burden to show that she purchased food from the retailer in reliance upon manufacturer's representations, express or implied, that the food was wholesome, food sold in original package, that it was unwholesome and poisonous and that its toxic quality resulted from a failure of the manufacturer to exercise ordinary care and was the proximate cause of plaintiff's illness. The court also held that it was proper to allow into evidence testimony that the organism which allegedly caused food poisoning was present in the food when plaintiff purchased it. Armour & Co. v. Leasure, 9 A.2d 572 (Md.App. 1939).
STATUTES:
Under Title 21, Subtitle 2, Maryland has enacted the Maryland Food, Drug and Cosmetic Act, which covers food preparation and the adulteration or misbranding of food. A food is adulterated if it contains any poisonous substance, is filthy, or otherwise unfit as food for human beings. Sec. 21-207. Maryland's statute prohibits the manufacture or sale of any food that is adulterated. It is a defense to an alleged violation of the Food, Drug and Cosmetic Act if a person establishes by a preponderance of the evidence that the person did not commit the alleged violation purposely, knowingly, recklessly or negligently Sec. 21-260.
Reasonable Expectation Test
CASE LAW:
Food Poisoning:
1. Liability - Plaintiff's evidence was insufficient as a matter of law to raise a reasonable inference in his favor on the question of causation when plaintiff offered no evidence other than his confirmed case of salmonella poisoning, the absence of any other food consumed within twelve hours of his meal at the defendant's restaurant, and the onset of symptoms immediately after that meal. Denaro v. 99 Restaurant, Inc., slip op. (Mass. App. 2002) (unpublished decision).
2. Liability - Record supported finding that defendant's food caused plaintiff's salmonella poisoning based on evidence of defendant's malfunctioning refrigeration system, defendant's issuance of several citations for violations of the State Sanitary Code and plaintiff's onset of symptoms within the incubation period. Croteau v. Denny's Restaurant, Inc., slip op. (Mass. App. 2002) (unpublished decision).
3. Evidence of frankfurters' condition eighteen hours after they had been purchased, unpackaged and re-wrapped by the plaintiff was not sufficient to warrant a finding that plaintiff's illness was caused by negligence on the part of the defendant. Crowell v. First Nat. Stores, Inc., 173 N.E.2d 609 (Mass. 1961) .
4. Negligence - Evidence sufficient to sustain verdict for plaintiffs noting they were not bound to exclude every possible cause for their illnesses except that of the negligence of the defendant but rather were required to show by evidence only a greater likelihood that came from an act of negligence for which the defendant is responsible. Flynn v. Growers Outlet, 30 N.E.2d 250 (Mass. 1940).
5. Negligence - Evidence did not support the conclusion defendant was negligent when only evidence connecting defendant with the chickens was that the packaging had defendant's label and that the retail dealer who sold them to one of the plaintiffs had purchased them from the defendant as part of a box of twelve undressed frozen or cold storage chickens on the same day and there was no evidence of any specific negligent act or omission on the part of the defendant with respect to the chickens it sold. Mellace v. John P. Squire Co., 29 N.E.2d 26 (Mass. 1940) .
6. Negligence - Evidence produced at trial of several persons who ate the same frankfurters who became similarly ill warranted an inference that the food which all had eaten was unwholesome and was the cause of their illness. Johnson v. Kanavos, 6 N.E.2d 434 (Mass. 1937).
Foreign Object:
1. Breach of Implied Warranty - The court held there was no breach of implied warranty of merchantability when fishbone was found in chowder noting "[w]e should be prepared to cope with the hazards of fish bones, the occasional presence of which in chowders is, it seems to us, to be anticipated, and which, in the light of a hallowed tradition, do not impair their fitness or merchantability". Webster v. Blue Ship Tea Room, Inc., 198 N.E.2d 309 (Mass. 1964).
2. Breach of Implied Warranty - New trial granted when evidence was sufficient for jury to find wire got into steak while in the exclusive possession of defendant. Flynn v. First National Stores, 6 N.E.2d 814 (Mass. 1937).
3. Negligence - Massachusetts courts have recognized the "reasonable expectations test," which considers whether the consumer reasonably should have expected to find the injury-causing substance in the food, applies in foreign substance cases. Cotter v. McDonald's Restaurant of Mass., Inc., slip op. (Mass. App. Aug. 16, 2006) (unpublished decision). Circumstantial evidence may be used to establish causation. Id. The doctrine of res ipsa loquitur may be used to infer negligence in the absence of direct evidence. Tonsman v. Greenglass, 142 N.E. 756 (Mass. 1924).
4. Negligence - Given close proximity of cake, cream and strawberries to "exceptionally thin" glasses used in restaurant a reasonable inference could be made that clerk who served the cake was negligent in his examination of the cake, strawberries or whipped cream and affirming verdict for plaintiff. O'Brien v. Louis K. Liggett Co., 438, 185 N.E. 28 (Mass. 1933).
5. Negligence - Evidence sufficient to find negligence on part of defendant. Richenbacher v. California Packing Corp., 145 N.E. 281 (Mass. 1924).
No Formal Test Established
CASE LAW:
Injury:
1. Breach of implied warranty/strict liability - Under Michigan law, manufacturers have a duty to "provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of products design." Fabbrini Family Foods, Inc. v. United Canning Corp., 280 N.W.2d 877 (Mich. App. 1979). The manufacturer's duty also extends to designing and manufacturing a product to eliminate unreasonable risks of foreseeable injury. Id. A "defect" can be shown if the product is not reasonably fit for its intended, anticipated, or reasonably foreseeable use. Id. Goods to be merchantable must be fit for the ordinary purposes for which such goods are used. Martel v. Duffy-Mott Corp., 166 N.W.2d 541 (Mich. App. 1968).
2. To recover on the basis of breach of implied warranty wholesomeness and fit for human consumption, plaintiff must demonstrate the offensive condition was present when the product left the defendant's possession. Manzoni v. Detroit Coca-Cola Bottling Co., 109 N.W.2d 918 (Mich. 1961). Unexplained presence of deleterious substance in product manufactured and sold for human consumption is evidence of breach of implied warranty that product is wholesome and fit for human consumption. Id.
Food Poisoning:
1. Liability - Evidence was sufficient to present case to jury and court refused to adopt a blanket rule precluding recovery for loss of enjoyment of food when plaintiffs claimed they were no longer able to enjoy applesauce. Martel v. Duffy-Mott Corp., 166 N.W.2d 541 (Mich. App. 1968).
2. Liability - Plaintiff failed to prove causal connection between illness and ingestion of arsenic allegedly contained in sugar sold by defendant. Fulton v. Kroger Co., 120 N.W.2d 232 (Mich. 1963).
Foreign Object:
1. Breach of Implied Warranty - The evidence sustained jury verdict that the manufacturer breached the implied warranty that soft drink, which contained mold, was wholesome and fit for human consumption. Manzoni v. Detroit Coca-Cola Bottling Co., 109 N.W.2d 918 (Mich. 1961).
Spoilation:
1. Negligence - Evidence was sufficient to support finding of negligence on part of mushroom supplier. Fabbrini Family Foods, Inc. v. United Canning Corp., 280 N.W.2d 877 (Mich. App. 1979).
Burns:
1. Liability - Summary judgment appropriate on plaintiffs' claims when a fajita pan presented an open and obvious risk and did not create and unreasonable risk of harm. Valinski v. Little Mexico Restaurant, slip op. (Mich. App.2000) (unpublished decision).
Reasonable Expectation Test
CASE LAW:
Injury:
1. Negligence - In negligence cases, Minnesota relies on the "reasonable expectation" test. Schafer v. JLC Food Systems, Inc., 695 N.W.2d 570, 575-76 (Minn. 2005). Under this test, when a person is injured while consuming a food product, the manufacturer, seller, or distributor of the food product is liable to the extent that the injury causing object or substance in the food product would not be reasonably expected by an ordinary consumer. Id. Whether the injury causing object is reasonably expected by an ordinary consumer is usually a question of fact. Id. Minnesota law also provides for the use of circumstantial evidence to establish the food was defective, even if the object cannot be identified. Id.
2. In implied warranty cases, it is unnecessary to prove the manufacturer had actual knowledge of the contents of the product. Pietrus v. Watkins Co., 38 N.W.2d 799, 802 (Minn. 1949); Meshbesher v. Channellene Oil & Mfg. Co., 119 N.W.2d 428, 430 (Minn. 1909).
Foreign Object:
Liability - Plaintiff alleged facts sufficient to survive summary judgment when she demonstrated her injury was of a kind that would ordinarily only occur as a result of a defective condition in the pumpkin muffin served by defendant, that defendant was responsible for making the pumpkin muffin that caused her throat injury, and that her injury was not caused by anything other than a defect in the pumpkin muffin existing at the time of the muffin's sale. Schafer v. JLC Food Systems, Inc., 695 N.W.2d 570, 575-76 (Minn. 2005).
Burns:
Breach of Implied Warranty - Coffee was not defectively designed by virtue of temperature at which it was sold; risk of being burned by coffee was sufficiently open and obvious that no duty to warn existed, alleged failure to warn was not the cause of injury, recovery under negligence theory was barred, and coffee did not breach implied warranty of merchantability under UCC. Holowaty v. McDonald's Corp., 10 F. Supp. 2d 1078, 1082 (D. Minn. 2002).
No Formal Test Established
CASE LAW:
Food Poisoning:
1. Negligence - Germ in corned beef; evidence insufficient to present question to jury as to whether germ got into corned beef served customer by violation of duty owed by restaurant operators to customer. Goodwin v. Misticos, 42 So.2d 397 (Miss. 1949).
2. Liability - Illness from canned sausage; decision for defendant when evidence insufficient to establish the condition of the canned sausage at time can opened. Johnston v. Swift & Co. of Illinois, 191 So. 423 (Miss. 1939).
Foreign Object:
1. Negligence/Breach of Implied Warranty - Summary judgment appropriate on negligence and breach of implied warranty claims when plaintiff produced no evidence of a breach of duty or of a defect in the prime rib at time it was served to her. Thomas v. HWCC-Tunica, Inc., 915 So.2d 1092 (Miss. App. 2005).
2. Strict Liability/Negligence/Breach of Implied Warranty - Insect in biscuit; evidence sufficient to support finding of negligence and breach of implied warranty. CEF Enterprises, Inc. v. Betts, 838 So.2d 999 (Miss .App. 2003). To establish liability based on strict liability, a defendant will be liable when a defendant business sells to the public a food product, which is contaminated by an animal, insect or other foreign object, and an individual consumes that item and becomes ill after discovering the contamination. CEF Enterprises, Inc. v. Betts, 838 So.2d 999 (Miss .App. 2003).
3. Strict Liability - Wire in frankfurter; case properly submitted to jury on theory of strict liability. Mid-South Packers, Inc. v. Gould, 263 So.2d 785 (Miss. 1972).
4. Negligence - There was insufficient evidence to make case for jury against company where only testimony as to causation was provided by plaintiff. John Morrell & Co. v. Shultz, 208 So.2d 906 (Miss. 1968).
5. Negligence - Roach in bottle; finding res ipsa loquitur doctrine applicable and plaintiff not required to produce evidence of negligence on part of defendant or that no third person had opportunity for tampering with bottle which contained roach when plaintiff purchased it from vending machine. Coast Coca-Cola Bottling Co. v. Bryant, 112 So.2d 538 (Miss. 1959).
Injury:
Restaurants are required to use due care to see that food served to guests is fit for human consumption. Sartin v. Blackwell, 28 So.2d 222 (Miss. 1946).
No Formal Test Established
CASE LAW:
Choking:
Liability - Affirming jury verdict granting damages for mental conditions and loss of consortium for customer against restaurant attributed to choking on a piece of chicken. Banks v. Village Enterprises, Inc., 32 S.W.3d 780 (Mo. App. 2000).
Food Poisoning:
1. Liability - Testimony indicating all family members ate cake and that the cake was the only food item all family members had in common sufficient to support jury verdict. Dickson v. National Supermarkets, Inc., 728 S.W.2d 736, 737 (Mo. App. 1987).
2. Breach of Implied Warranty - Recognizing a cause of action under the breach of implied warranty theory and affirming jury verdict entitling plaintiff to damages based on eating a black bass which was putrid and which infected plaintiff with ptomaine poison. Smith v. Carlos, 247 S.W. 468 (Mo. 1923).
3. Liability - The fact that a food is subject to recall is not enough to establish a causal connection between defendant's product and the plaintiff's claimed injuries. Thacker ex rel Thacker v. Kroger Company, 155 Fed. Appx. 946 (8th Cir. 2005) (unpublished decision).
Foreign Object:
1. Liability - Grasshopper in canned green beans, "plaintiff's theory of the case" was not determinative when plaintiff's complaint alleged facts sufficient for recovery under any reasonable theory. Metty v. Surefine Essential Corporation, 736 S.W.2d 527 (Mo. App. 1987).
2. Liability - Buttermilk containing formaldehyde; jury verdict reversed based on multiple errors including testimony and jury instructions. Fantroy v. Schirmer Et Ux, 296 S.W. 235 (Mo. App. 1927).
3. Liability - A glass in bottled milk; focusing on plaintiff's burden to demonstrate glass in the milk at the time defendant left it in the usual place, on the steps, decision reversed due to prejudicial error. Hickman v. St. Louis Dairy Company, S.W.2d 177 (Mo. App. 1936).
4. Breach of Implied Warranty - A glass in bowl of soup purchased at restaurant; recovery based upon implied warranty of fitness for a particular purpose, however, decision reversed based on improper jury instruction. Bell v. S.F. Kresge Company, 129 S.W.2d 932 (Mo. App. 1939).
5. Liability - Metal pieces in ground sausage; decision for defendant reversed based on plaintiff's showing on issue of whether metal like substance in sausage was the cause of plaintiff's injuries. Perkins v. Kroger Company, 592 S.W.2d 292, 293 (Mo. App. 1979).
No Formal Test Established
No case law in the context of restaurant-related claims.
No Formal Test Established
CASE LAW:
Food Poisoning:
Liability - Affirming verdict for defendant when plaintiff did not offer evidence the food consumed at defendant's restaurant was unwholesome. Renna v. Bishop's Cafeteria Co. of Omaha, 218 N.W.2d 246 (Neb. 1974).
Foreign Object:
1. Breach of Implied Warranty - Glass in sherbert; adopting right to proceed under breach of implied warranty theory. Zorinsky v. American Legion, Omaha Post No. 1, 79 N.W.2d 172, 177-78 (Neb. 1956).
2. Breach of Implied Warranty - A mouse in bottle; recognizing privity of contract is not necessary to prevail in implied warranty cases. Asher v. Coca Cola Bottling Co., 112 N.W.2d 252, 255 (Neb. 1961).
3. Liability - Olive pit in steak sauce; holding it would be too strict a rule to hold the defendant liable as a matter of law for any accidental contamination of the food that might have occurred after the guests commenced serving themselves at the buffet table. Wintroub v. Abraham Catering Service 183 N.W.2d 741 (Neb. 1971).
No Formal Test Established
CASE LAW:
Choking:
Liability - An employee assessed the customer's condition immediately upon being summoned, diligently continued to monitor the customer's condition until his condition worsened, and, at that point, summoned medical professionals, the behavior, under the circumstances, was reasonable). Lee v. GNLV Corp., 22 P.3d 209 (Nev. 2001).
Food Poisoning:
Liability - Evidence produced by plaintiff sufficient to find a question of fact on whether the tartar sauce from defendant's restaurant caused plaintiff's injuries. Wilson v. Circus Circus Hotels, Inc., 710 P.2d 77, 78 (Nev. 1985).
Foreign Object:
Strict Liability - The court adopted a strict liability standard and noted that plaintiff does not bear the burden of proving there was no reasonable opportunity for someone to tamper with a bottle. Shoshone Coca-Cola Bottling Company v. Dolinski, 420, P.2d 855 (Nev. 1966).
No Formal Test Established
CASE LAW:
Foreign Object:
1. Negligence - Consumer ate some food containing a dead mouse. The discovery made her sick and she suffered from a "nervous shock." She brought this case for negligence. The court found that if the restaurant was liable, then it was liable for the actual effects on the consumer whether the consumer's suffering was bodily, mental, or nervous trouble. Kenney v. Wong Len Et Al., 128 A. 343 (N.H. 1925).
2. Negligence - The consumer was injured when she ate ice cream which contained a glass splinter. Action was brought in negligence. Evidence of careful ice cream production warranted finding that the splinter did not enter the ice cream during production and delivery allowing inference that the glass entered while it was under control of the retail department store. Negligence issue was for a jury to decide. Ballas v. F. W. Woolworth Co. Same v. H. P. Hood & Sons, Inc., 10 A.2d 233 (N.H. 1939).
STATUTES:
N.H. Rev. Stat. § 143:2. Unsanitary Conditions.
N.H. Rev. Stat. § 146:1. Prohibited Acts (concerning food and drugs).
N.H. Rev. Stat. § 146:3. Adulterations, Foods.
A Form of the Reasonable Expectation Test
CASE LAW:
Food Poisoning:
Strict Liability - Several plaintiffs sued a restaurant after they suffered food poisoning from salmonella. Plaintiffs contend the restaurant was strictly liable. The court found that under the Uniform Commercial Code, the furnishing of food at a restaurant constituted a sale and the implied warranty of merchantability applied. Therefore, the court held that the restaurant was strictly liable to plaintiffs. Under the adulterated food statute, a violation of the statute is, in itself, an act of negligence. The restaurant violated the statute by selling adulterated food and as such, it was liable to plaintiffs. The court found that there was a third basis for the imposition of liability under New Jersey's products liability statute (N.J.S.A 2A:58C-1). The restaurant served plaintiffs food which was not reasonably fit and it caused them harm. Koster, et al v. Scotch Associates, et al, 640 A.2d 1225 (1993).
Illness:
Negligence/Strict Liability Breach of Implied Warranty - Consumers of pork chops, who contracted trichinosis, brought action against seller. The court held that there was no evidence the seller did not do something it should have done when handling the meat, and thus no recovery under a theory of negligence under a strict liability theory because the defect was not detectable by the seller and is curable by the proper cooking by the buyer. The court further held that neither recovery under theory of strict liability nor recovery for breach of implied warranty of merchantability requires proof of negligence by the defendant; liability is established if the evidence shows that the product was not reasonably fit for the ordinary purposes for which it was sold and that such defect proximately caused injury to the consumer. Hollinger v. Shoppers Paradise of New Jersey, Inc., 340 A.2d 687 (1975).
STATUTES:
New Jersey has enacted an adulterated food statute which sets forth the adulterated food standards and guidelines governing the sale and distribution of food. See N.J.S.A. 24:21-53. The statute prohibits the sale or distribution of food which is adulterated. Adulterated food is defined as follows: "if it bears or contains any poisonous or deleterious substance which may render it injurious to health...if it falls below the standard of purity, quality or strength which purports or is represented to possess." Id. The statute imposes criminal penalties for violations. See N.J.S.A. 24:17-1.
No Formal Test Established
There is no case law or statute which specifically deal with food-related issues.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
Breach of implied warranty claim - when customer is injured by object in food, whether foreign, natural, or unknown, and that customer brings an implied warranty action, question whether consumer should have reasonably expected object in food is jury question. Factors in determining reasonable expectations: (1) nature or size of object, (2) type of food involved, (3) type of establishment where food was inspected, processed and prepared, (4) type of establishment where food purchased, (5) whether food needed further preparation before consumption, (6) what type of opportunity consumer had to protect from alleged defect, (7) what steps reasonable consumer must take to inspect food prior to consumption. Rudloff v. Wendy's Restaurant of Rochester, 12 Misc. 3d 1081 (NY 2006).
Illness:
1. Liability - nonspeculative evidence must be offered to support an inference that food was contaminated or that a blood disorder contracted after consuming food to support claim that it was causally related to food poisoning, in order to hold restaurant liable. Williams v. White Castle Systems, 4 A.D.3d 161 (NY 2004).
2. Liability - restaurant can be held liable without fault for serving unwholesome food, even absent privity. England v. Sanford, 167 A.D.2d 147 (NY 1990).
3. Liability - plaintiff seeking to recover damages for food poisoning was required to prove the purchase of the food, that it was unwholesome, and that injury resulted from its consumption. Proof of unwholesomeness may be supplied by circumstantial evidence, but circumstances must lead to the logical inference or conclusion that food was tainted. Pendola v. M. & S. Cafeteria, 206 Misc. 595 (NY 1954).
4. Liability - where there are several possible causes of plaintiff's injury, he cannot recover damages without proving that injury resulted wholly or partly from cause for which defendant is responsible. Blackman v. Lundyn, 193 Misc. 745 (NY 1948).
Miscellaneous:
1. Breach of implied warranty - glass of water not purchased shattered in customer's hand. It was a "sale" for purposes of implied warranty, and restaurant can be held liable under implied warranty, strict products liability, but not express liability. Gunning v. Small Feast Caterers, Inc., 4 Misc.3d 209 (NY 2004).
2. Liability - if patron becomes violently ill, necessitating removal to hospital by ambulance before check is paid, non-payment of the check does not bar action against restaurant for injuries. Conklin v. Hotel Waldorf Astoria Corporation, 5 Misc.2d 496 (NY 1957).
Choking:
Negligence - restaurant incurred no liability for patron's death from choking on food based on proprietor's failure to administer Heimlich Maneuver to patron. Although duty may have been assumed in moving patron to public sidewalk, proprietor not liable unless proven that proprietor's affirmative acts were proximate cause of patron's injuries. Acosta v. Fuentes, 150 Misc.2d 1013 (NY 1991).
Burns:
Liability for injury - a defendant may be held liable for the personal injuries caused by serving a beverage that, because of its excessive temperature, was unreasonably dangerous for its intended use, and that the drinking or other use presented a danger not reasonably contemplated by consumer. McLean v. National Center for Disability Services, 30 A.D.3d 383 (NY 2006).
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Negligence/Breach of Implied Warranty - Bone in hamburger case. It is not bar to recovery that the substance was "natural" to the food. The issue is whether the bone's presence should not have been reasonably anticipated by the consumer. Restaurant was not negligent, however, because they demonstrated that they took precautions, i.e. a bone collector, in processing meat. Goodman v. Wenco Foods, Inc., 423 S.E.2d 444 (NC 1992).
2. No breach of implied warranty for unshelled nut in jar of shelled nuts since the impurity was natural incident of goods in question. Coffer v. Standard Brands, Inc., 226 S.E.2d 534 (N.C. App. 1976).
3. No strict liability in tort for tooth injury sustained by purchaser who bit into unshelled nut because product must not only be defective but also present unreasonable danger to health. Coffer v. Standard Brands, Inc., 226 S.E.2d 534 (N.C. App. 1976).
4. Presence of glass in barbecued beef sandwich was breach of implied warranty of fitness for human consumption. Williams v. Elson, 10 S.E.2d 668 (NC 1940).
Miscellaneous:
1. Breach of implied warranty - restaurant employee spat in customer's food. Ingestion of employee's saliva was sufficient injury to sustain claim of breach of implied warranty of merchantability. Also, on claim for vicarious liability, it is a jury question as to whether act of spitting in food was done within scope of employment. Phillips v. Restaurant Management of Carolina, L.P., 552 S.E.2d 686 (NC App. 2001).
2. When a product is acquired and sold by the seller in a sealed container, or sold by the seller with no reasonable opportunity to inspect the product, the consumer does not have a products liability action against the seller. Jones v. GMRI, 551 S.E.2d 867 (NC App. 2001).
STATUTES:
NCGSA 106-129: Foods Deemed Adulterated if it: contains poisonous or deleterious substance which renders it injurious to health, but not if the quantity of such substance does not ordinarily render it injurious to health.
No Formal Test Established
CASE LAW:
Illness:
1. That salmonella carrying food was actually eaten by Plaintiff can be proven by circumstantial evidence. Leno v. Ehli, 339 N.W.2d 92 (ND 1983).
2. Expert testimony is not required to prove whether a Defendant's preparation of turkey was sufficient to kill salmonella. Leno v. Ehli, 339 N.W.2d 92 (ND 1983).
STATUTES:
NDCC 19-02.1-09 Food is adulterated if it contains any deleterious substance which renders it injurious to health, but not if the quantity of such substance does not ordinarily render it injurious to health.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Negligence action - plaintiff who broke tooth while eating at a restaurant failed to present evidence of foreign object in her food that was hard enough to break her tooth, thus failing to establish negligence. Haughey v. Twins Group, Inc., 2005 WL 678919 (Ohio Misc. 1974).
2. Negligence action - plaintiff should have reasonably anticipated and guarded against the presence of a pig's bone in a sausage, egg, and cheese bagel sandwich. Parianos v. Bruegger's Bagel Bakery, 2005 WL 78114 (Ohio App.3rd 2005).
3. Manufacturer and retailer of cooked salami held liable for injury to purchaser's tooth for failure to warn of potential danger from biting into whole peppercorns contained in product. Also, no showing that whole peppercorns necessary to constitute its acceptance as cooked salami. Hecht v. Giunta's Stop & Shop Market, 317 N.E. 2d 269 (Ohio Com.Pl. 1998).
Illness:
Negligence - restaurant's warning was adequate and duty to warn was not breached when they warned of risks associated with eating raw oysters on menu under all oyster entrees that patrons should eat those products fully cooked if patrons suffered from chronic illness of the liver, stomach, or blood, if patrons were pregnant or if patrons had immune disorders. Woeste v. Washington Platform Saloon & Restaurant, 836 N.E. 2d 52.
Burns:
1. Products liability - warnings printed on cup "CAUTION - CONTENTS ARE HOT" were adequate as a matter of law. Immormino v. J & M Powers, Inc. d/b/a McDonald's, 698 N.E.2d 516 (Ohio App.3rd 1994).
2. Duty to Warn - restaurant had no duty to warn customer who placed several hot dinner rolls and was burned by steam that escaped from the rolls when he bit down on them. A restaurant has no duty to protect a customer from rolls that are not unusually hot. Gauci v. Ryan's Family Steak Houses, Inc., 2004 WL 1595132.
Miscellaneous:
Duty to Warn - restaurant had no duty to warn customer that hamburger product sold contained carrageenan, to which customer was allergic. Restaurant owed no duty to inquire beyond the facts already available to him with respect to the safety of the product. Brown v. McDonald's Corp., 655 N.E.2d 440.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Breach of implied warranty action - "reasonably expected" test for raw pearl found in can of processed oysters rather than "natural/foreign" object test. "Reasonably expected" means more of a probability than a possibility. O'Dell v. DeJean's Packing Co, Inc., 585 P.2d 399 (Okla.Ct.App. 1978).
2. Breach of implied warranty action - "reasonably expected" test preferred to "natural/foreign" test for cherry pit in cherry pecan ice cream. Williams v. Braum Ice Cream Stores, Inc., 534 P.2d 700 (Okla.Ct.App. 1974).
Illness:
Where plaintiff ate two different kinds of food, neither of which was shown to be tainted or unwholesome, except by the circumstances of her being ill, to single out one as the cause (tainted sausage from grocer) is speculation and should not be submitted to jury on negligence. Safeway Stores v. Fuller, 118 P.2d 649 (Okla. 1941).
Miscellaneous:
Rescue Doctrine - an injured party may recover damages from restaurant for injury sustained in rescue attempt when driving person who swallowed glass in food to hospital. Day v. Waffle House, Inc., 743 P.2d 1111 (Okla.Ct.App. 1987).
Reasonable Expectation Test
Foreign/Natural Test
CASE LAW:
Foreign Object:
Breach of implied warranty action - implied warranty of fitness for human consumption not breached when cherry pit was left in cherry pie because cherry pits are not a foreign substance in a cherry pie and can be reasonably expected and guarded against. Hunt v. Ferguson Paulus Enterprises, 415 P.2d 13 (Or. 1966).
Illness:
Implied breach of warranty claim - not necessary to prove negligence on part or restauranteur, but if food is not fit for consumption, it is sufficient to show that the restauranteur should have known of the bad condition of the food and was negligent in serving it. Gardyjan v. Tatone, 528 P.2d 1332 (Or. 1974).
Injury:
Negligence action - waitress knocked ketchup bottle on counter to loosen cap and gave unknowingly cracked bottle to customer to open, resulting in injury. Restaurant found negligent. Stubbs v. Pancake Corner of Salem, Inc., 458 P.2d 676 (Or. 1969).
Burns:
Products liability - under the Washington Products Liability act, plaintiff must show that (1) a product was not reasonably safe because of design or because of inadequate warnings, (2) the defendant manufactured the product, (3) the plaintiff was injured, and (4) the defective design or inadequate warnings proximately caused the injury. Valencia v. Crane Co., 2005 WL 1189606.
A Form of the Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Emotional distress - actionable from shock and nausea due to foreign object (seeds and hops from improperly brewed beer). Marlow v. C. Schmidt & Sons, Inc., 70 Pa. D. & C.2d 305.
2. Breach of implied warranty action - It is a jury question whether or not the implied warranty of wholesomeness had been breached by an oyster shell found in a sealed container of oysters, or a chicken bone found in a chicken pie. Consequential damages include only personal injuries that are proximately caused by the breach. DeGraff v. Myers Foods, Inc., 19 Pa. D. & C.2d 19.
Illness:
Implied breach of warranty claim - actionable as claim that food was unfit for human consumption. Not required to show that food was unmerchantable due to restaurant's negligence, however. Restaurant can defend by showing storage, inspection, and manner of preparation as evidence of non-defective product. Admissible also to show other patrons did not become ill when served same food that evening. Orlando v. Herco, Inc., 351 Pa. Super. 144, 505 A.2d 308.
No Formal Test Established
CASE LAW:
Foreign Object:
Breach of Implied Warranty - Action against the manufacturer for personal injuries sustained by plaintiff as a result of his discovery of a small mouse in a bottle of a soft drink. Plaintiff brought claims alleging breach of implied warranty of fitness for specific use. The court held that under the law of Puerto Rico, privity of contract was not necessary for a consumer of unwholesome food to recover damages from the manufacturer on a breach of warranty claim. When the manufacturer of an article used for food offers it for sale for human consumption, the presumption is that he has complied with the Act, that he has placed on the market an unadulterated article and that he warrants that it is fit for its intended use. Torres v. Coca-Cola Bottling Company of Puerto Rico, 255 F.2d 149 (1958).
STATUTES:
Puerto Rico has a Food, Drug and Cosmetic Act covering the sale, handling, delivery or any food that is adulterated or misbranded. Title 24, Chapter 51, Sec. 713.
Reasonable Expectation Test
CASE LAW:
Foreign Object:
1. Negligence/Implied Warranty: Consumer found particles of glass in ice cream which the defendant had manufactured, wrapped and sold. This was an action in negligence. This was not an action in implied warranty since there was no privity of contract between the parties. "In a single action recovery cannot be had in both contract and tort." Minutilla v. Providence Ice Cream Co., 144 A. 884 - 885. (R.I. 1929).
2. Consumer sued for breach of implied warranty alleging that he swallowed a piece of wood that was concealed in some beans he bought and ate at the defendant's restaurant. The Rhode Island Supreme Court found that consumers damaged by unfit restaurant food may sue either for negligence or for breach of implied warranty Ford v. Waldorf System, Inc., 188 A. 633 (R.I. 1936).
3. Negligence - Consumer was injured when she swallowed two small pieces of wire which were concealed in her meal of beef stew, bread and coleslaw. This was an action in negligence. Reasonable care is required so that foreign substances injurious to humans do not get into the customer's food. Customers reasonably expect to find their purchased food to be free of such substances. "The negligence of the defendant is fairly inferable from the presence of the wires in the food and the other testimony in the case. The jury, therefore, had the right to draw such an inference." Chisholm v. S. S. Kresge Co., 182 A. 4, 7. (R.I. 1935).
4. Negligence - While the consumer was eating his chicken or turkey croquettes, mashed potatoes and gravy, he suffered a violent coughing and choking attack. After drinking water, this subsided and he could finish his meal after which he found a toothpick on his plate. A few days later, the consumer began suffering stomach pains so that surgery was required. The surgeon found and removed from the consumer's colon four toothpicks stuck together. The consumer brought an action for negligence. The consumer's testimony regarding the above was sufficient to present a negligence question to a jury. Negligence may be established by circumstantial as well as by direct evidence. Black v. Child's Co. of Providence, 58 A.2d 115 (R.I. 1948).
Choking:
Liability - Consumer of restaurant's chicken soup choked on a chicken bone (3/4 to one inch long). The bone was dislodged and the consumer swallowed the bone. The consumer brought an action in negligence. The court found that it is for a jury to determine whether the substance which made the food unfit for consumption "is natural and expected to be in the final product which is impliedly represented as fit for human consumption." Wood v. Waldorf System, 83 A.2d 90 , 93 (R.I. 1951).
Spoilation:
Liability - Consumers became violently ill shortly after eating a piece of the restaurant's lemon meringue pie. The burden is on the plaintiff (consumer) to prove that the food is unmerchantable and that it caused their ailment. Devereaux v. McGarry's, Inc., 266 A.2d 908 (R.I. 1970).
STATUTES:
RI ST § 21-31-3. Prohibited acts (concerning food and drugs).
RI ST § 21-31-10. Adulterated food when food is considered adulterated.
Case Law Decided in this Area on Other Grounds
CASE LAW: There is minimal case law involving food claims.
Foreign Object:
1. Negligence- There are two reported Supreme Court decisions dealt with claims against a soft drink bottler. In both cases, plaintiffs claimed to have consumed a soft drink that contained a foreign substance. The court looked at the timing of any subsequent illness and found that a showing of symptoms shortly following the consumption of the contaminated beverage was sufficient to bring the issue before the jury on causal connection. In the one case, the first symptoms did not occur until about two hours after plaintiff drank the soft drink and there was no medical testimony as to the cause of plaintiff's illness. Therefore, the court found in favor of defendant. However, where plaintiff became ill immediately after consuming the soft drink the court found that there was sufficient evidence to sustain a