Friday, March 14, 2014


Some of the more interesting cases that my offices have been involved in have concerned food products or dishes that contained contaminants that should not have been there.  Because this is an unavoidable risk of eating food, but is something that nobody would want to encounter, these types of cases tend to be somewhat unforgettable even with the passage of time from having handled such matters.

The law imposes strict liability for certain injuries as a matter of public policy, in certain types of cases.  If a food product has a contaminant in it that is not natural to the preparation or nature of the particular product, then the law will impose strict liability for all resultant injuries, regardless of whether or not the purveyor or vendor of the food product was negligent in the preparation of same.

Under what has come to be known as the "consumer expectation test", if the contaminant in question is not natural to that food product, then strict liability will apply.  On the other hand, if the contaminant in question is natural to that food product (ie., a bone fragment in a meat or fish dish), then strict liability will not apply, and the injured consumer can only assert negligence as the basis of a legal claim.  This may be difficult or impossible to do given the circumstances of any particular case, as the law only requires that a person owing a duty of care to another act "reasonably", not "extraordinarily reasonably".

Some of the non-natural contaminant cases that I have been involved in over the years have included broken glass in a dinner salad, worms in a candy bar, a piece of clear plastic in a container of mashed potatoes, a band-aid in a deli sandwich, and pieces of metal in fast food burgers (the latter situations were nearly always the result of the metal ring used to secure the ends of  commercially prepared plastic rolls of ground round somehow ending up in the patty, although I had one case wherein the piece of metal was a heavy gauge staple on a hamburger patty (this is not an advisable way to secure the cheese to the patty).

Much more difficult are cases wherein the consumer alleges to have contracted food poisoning due to ingesting a certain food product.  Proving that a specific food item caused food poisoning when the consumer most likely had several meals over the past 24 hours from other sources can be an uphill battle.  Moreover, many "food poisoning" claims are based solely on various subjective symptoms that cannot be medically correlated to a true situation of food poisoning.  The cases that I have been successful with in this area have all involved situations wherein there were multiple victims who had all consumed the same product from the same source.  There is strength in numbers.

In many food contaminant cases, the potential damages are somewhat nominal.  While anyone would probably have revulsion or distress at finding certain contaminants in their meal, those cases are not worth as much as those wherein the consumer requires medical or dental care to treat an actual physical injury arising out of the experience.

As might be expected, some food contaminant claims are looked at askance by the defendant, as they can be easy to fake by a dishonest person.

If you are the actual victim of a food contamination incident, it is important to remember the following:  (1)  make an immediate report or complaint to the vendor of the product or dish; (2)  save the contaminated object -- many restaurants or retailers will want to take immediate possession of whatever you may have found, but do not surrender what is now "Exhibit A" -- they can look at it later in a controlled setting after a formal claim is made; and (3)  seek medical or dental care immediately if a physical injury or significant distress is involved.

Lastly, I must share my favorite "food" contaminant case of all time.  This one was not a case that I handled, but I remember it from law school, and even then it was only a footnote in a products liability treatise that I was required to read.  The footnote referred to an actual case where a consumer bit into a plug of chewing tobacco and encountered a severed human toe.  While some may view this as an object lesson as to why you shouldn't  be using "chaw", my question was how this unfortunate soul was able to tell the difference between the "chaw" and the toe.  And that is why I don't use chewing tobacco.