The month of October is often associated with many fantastical creatures, sights, sounds, and gimmicks. Halloween brings out the fun and quirkiness of many people who decide to dress up and go door to door in an effort to procure (or disseminate) bite size candy bars to various children. Prior to going out and collecting as much candy as humanely possible- children are often warned to not eat any candy until the parents can safely sort through the goodies to determine whether or not the candy is safe. When asked why, children are often regaled with the story of the child who bit into a candy bar only to discover a razor blade hidden within its chocolate center. While this story is more legend than fact- it presents an interesting question as to the liability when an individual bites into a foreign or unexpected objects in food.
In April of 1959, Priscilla Webster went to the Blue Ship Tea Room in an old building on the Wharf in Boston. Ms. Webster was a native of New England at the time of her presence at the Blue Ship Tea Room. As she sat and looked at the menu, she ordered clam chowder and a crabmeat salad. She was told that while the restaurant was out of clam chowder, she could have fish chowder as a substitute. Ms. Webster agreed and was presented with chowder containing haddock, potatoes, milk, water and seasoning. As she ate her bowl of soup she became aware that something was lodged within the confines of her throat. Ms. Webster went to Mass General Hospital where it was discovered that a fish bone was stuck in her esophagus. While she did not have long lasting injuries- she did file a claim against the Blue Ship Tea Room for the bone that caused her pain and injuries.
Ms. Webster claimed, under the Uniform Commercial Code, that the Defendant had a duty as a seller of goods- to make sure that they were reasonably safe and fit for their ordinary purpose (in this case consumption). And due to the fact that there was a bone present in the chowder- liability must attach because bones are not fit for ordinary human consumption. The Defendant argued that as a native resident of New England- Ms. Webster was or should have been aware of items that can be in fish chowder- such as bones. The Court, relying on unusual sources for guidance, mentioned that, “Daniel Webster, had a recipe for fish chowder which has survived into a number of modern cookbooks and in which the removal of fish bones is not mentioned at all.” And, “It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”
The court drew a distinction between food that is unwholesome (such as tainted food) and a fish bone in fish chowder. The latter of which contains certain ingredients (such as bone) that a person may anticipate finding whilst eating a stew. The test stemming from this would indicate that if a person has reason, or should have reason, to anticipate items in food (such as bones)- he or she cannot claim liability on the seller of these items. To read more on the case referenced above, please read Webster v. Blue Ship Tea Room. If you believe you have a personal injury case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.