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Foreign and Unexpected Items in Food: Pt 2

blueAs discussed in the first entry of foreign and unexpected items in food, the courts of Massachusetts have drawn a distinction between food that is unwholesome and food with natural (although unexpected) items present in the food such as a fishbone in seafood chowder. When dealing with the former, courts have relied upon traditional concepts of negligence and breach of warranty in an attempt to resolve legal matters.

Generally, if a person were to suffer an injury as a result of a foreign object present in food, he or she may bring a claim predicated upon negligence. To prove negligence, a plaintiff must show that a duty existed to him or her, that the defendant breached this duty owed to the plaintiff, that the plaintiff suffered injuries that were causally related to the defendant’s breach. The plaintiff does not need to exclude every possible cause of a foreign object in his or her food, but her or she must show by a preponderance of the evidence (meaning it is more likely than not) that the object was the responsibility of the defendant.

In Ash v. Childs Dining Hall Company, the court was asked whether negligence could apply to a defendant restaurant after a plaintiff alleged that she received injuries from the presence of a tack in a piece of blueberry pie she was eating whilst a guest of the defendant’s establishment. The manager of the restaurant, testifying on behalf of the defendant, claimed that the blueberries came in ordinary quart berry baskets and this was the first time in eighteen years that he heard of a tack in blueberries. Additionally, there was other testimony that there was a high degree of care exercised in the preparation of blueberries for all pies including the one that ultimately injured the Plaintiff. The court surmised that:

“the carelessness of some person for whom the defendant in no way was responsible might have caused its presence in the pie. The maker of the basket, some previous owner of th berry, or some other third person, is as likely to have been the direct cause of the tack being in the pie as the defendant or those whose conduct is liable.”

The court further stated that the mere fact of injury does not evidence negligence. The burden of proof is on the plaintiff to show that the injury causing act was either directly caused by the defendant or inferentially caused by the defendant. The injury causing act of having a tack in a blueberry is just as likely to be the fault of another as it was the restaurant. As such, the Plaintiff failed to show one of the elements of negligence: proximate cause. Her case was ultimately reversed and dismissed.

The court has frequently had an opportunity to opine on the matter of foreign objects in food. Liability may attach in situations where food or drink contains wood, glass, metal, wires, or animal parts. If you believe you have a case for negligence or products liability, our office can help you determine whether or not you may be able to recover for your injuries.  To read more on the case referenced above, please see Ash v. Childs Dining Co. 231 Mass. 86 (1918).  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.

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