As 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: Continue reading →