After a nearly exhaustive review of case law on the issue of whether PA applies the foreign-natural test, or alternatively, the reasonable expectation test in determining whether a food manufacturer may be held on a theory of strict liability or an implied warranty of merchantability—it’s non-dispositive (I think that means inconclusive). Tentatively, it appears PA applies a form of the reasonable expectation test.
More specifically, there is a two-step approach utilized by courts in analyzing tainted food cases: (1) if the object causing harm found in the food is “natural” (i.e., chicken bone in chicken) then a manufacturer may not be held liable under a theory of strict liability or an implied warranty of merchantability. However, (2) proceeding under a theory of negligent handling/food preparation the “reasonable consumer expectation” would indicate that one would not reasonably expect a bone to be found in boneless chicken breast. That is important as it is more difficult to establish a negligence claim than it is a strict liability one. That is because strict liability, sometimes called absolute liability, creates legal responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent.
The state of California Supreme Court expounded on the above case law:
“Many cases adopting a “reasonable expectation” test, however, did not reject completely the foreign-natural test when the injury was caused by a substance natural to the food served. Rather, several courts have retained the foreign-natural distinction in applying the “reasonable expectation” test. In these cases, the “naturalness” of the substance is used to determine which theory of recovery should be allowed—strict liability, implied warranty and/or negligence. When it is found that the injury-producing substance is natural to the food product, such as a chicken bone in a chicken pie, these courts have applied the Mix rule to hold an injured plaintiff cannot state a cause of action based on the breach of the implied warranty of merchantability or strict products liability, because it is a matter of common knowledge that the natural substance is occasionally found in the food served. These courts have departed from Mix, however, in holding that under the same facts, an action can be stated in negligence for the failure to exercise reasonable care in the food preparation.” Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 626, 822 P.2d 1292, 1298 (1992).
In sum, the trend developing in courts recently considering the issue whether a plaintiff may recover for injuries caused by a natural or foreign substance can be summarized as follows: If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined to be unfit for human consumption or defective. Thus, a plaintiff in such a case has no cause of action in implied warranty or strict liability. The expectations of the consumer do not, however, negate a defendant's duty to exercise reasonable care in the preparation and service of the food. Therefore, if the presence of the natural substance is due to a defendant's failure to exercise due care in the preparation of the food, an injured plaintiff may state a cause of action in negligence. By contrast, if the substance is foreign to the food served, then a trier of fact additionally must determine whether its presence (i) could reasonably be expected by the average consumer and (ii) rendered the food unfit for human consumption or defective under the theories of the implied warranty of merchantability or strict liability.
The landmark case of Mix v. Ingersoll Candy Co. et al., 6 Cal.2d 674 (1936), which held that a restaurant owner was not liable in tort or implied warranty for injury to a patron caused by a chicken bone served in a chicken pie, created a progeny of cases decided on the rationale that “[b]ones which are natural to the type of meat served cannot legitimately be called foreign substance, and a consumer who eats meat dishes (cue the ridiculousness) ought to anticipate and be on his guard against the presence of such food served can never lead to tort or implied warranty liability”.
The case most on point in Pennsylvania is DeGraff v. Myers Foods, Inc., 19 Pa. D. & C.2d 19 (1957), wherein the plaintiff brought an action in assumpsit to recover consequential damages alleging to have been caused by defendant’s breach of an implied warranty that a certain item of food prepared by it was wholesome and fit for human consumption. The plaintiff started to eat the chicken pie, until a bone lodged in his throat, resulting in injuries. The cases discussed Mix and its progeny, but most importantly, drew a distinction that Pennsylvania is in the minority holding to the contrary. The Court in DeGraff noted:
“While the foregoing precedents would indicate that the weight of authority in this country would favor defendant's argument in the instant case, unfortunately for it Pennsylvania seems to be a minority of one in holding to the contrary. In Bonenberger v. Pittsburgh Mercantile Co., supra, decided in 1942, the Supreme Court reversed a judgment on a directed verdict for defendant, holding, inter alia, that it was a jury question whether or not the implied warranty of wholesomeness arising from section 15(1) of The Sales Act had been breached by reason of a piece of oyster shell in a sealed container of oysters purchased by plaintiff from defendant. While consuming an oyster stew prepared therefrom, plaintiff was seriously injured by swallowing the piece of shell. Although two justices dissented, relying on the Mix case, supra, a majority of the court held that reasonableness could not be declared as a matter of law, and that evidence showing the care taken by the packers to eliminate shells, although persuasive and relevant on the question as to whether the product was in fact reasonably fit for human consumption as food, nevertheless was for the jury, not the court. It is clear from the dissenting opinion that this decision is flatly contrary to that reached in the California and other cases discussed above, and accordingly precludes us from following the latter”.
DeGraff v. Myers Foods, Inc., 19 Pa. D. & C.2d 19, 23-24 (Pa. Com. Pl. 1958).
Ultimately, the court denied defendant’s preliminary objections to plaintiff’s complaint.
In McDonalds advertising of their chicken nuggets as “all white meat” (assumedly breast), and “boneless” chicken nuggets, a “reasonable consumer” would not expect there to be a bone fragment as they would if consuming chicken wings. I do not know how one could argue that a consumer should reasonably expect a boneless chicken nugget to include bone fragments. Thus it would seem that a strict liability claim could be made for injuries related to a bone in a product advertised as bone free.
Listed below are the most relevant PA cases discussing the issue:
Catani, 251 Pa. 52 (1915)
Rozumalski, 296 Pa. 114 (1929)
Nock, 102 Pa.Super. 515 (1931)
Madden, 106 Pa.Super. 474 (1932)
Newcomb, 39 F.Supp. 716 (M.D. Pa. 1941)
*Bonenburger, 28 A.2d 913 (Pa. 1942) (How about that name for a tainted food case?)
DeGraff, 19 Pa. D. & C.2d 19 (1958)
Marlow, 70 Pa. D. & C.2d 305 (1975) Share this post :