Evart v. Suli

• Decision Date: 15 June 1989
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 UCC Rep.Serv.2d 996, Prod.Liab.Rep. (CCH) P 12,224 Patrice F. EVART, Plaintiff and Appellant, v. Steve SULI et al., Defendants and Respondents. B032334.

Page 535

259 Cal.Rptr. 535

211 Cal.App.3d 605, 8 UCC Rep.Serv.2d 996,

Prod.Liab.Rep. (CCH) P 12,224

Patrice F. EVART, Plaintiff and Appellant, v. Steve SULI et al., Defendants and Respondents.

B032334.

Court of Appeal, Second District, Division 5, California.

June 15, 1989.

Review Denied Aug. 31, 1989.

Michael F. Kushner, for plaintiff and appellant.

Marrone, Robinson, Frederick & Foster, Linda B. Bulmash, Roper & Folino and Michael J. Irwin, Los Angeles, for defendants and respondents.

BOREN, Associate Justice.

The question presented by this appeal is whether, as a matter of law, a plaintiff is barred from recovering for injuries she sustained as a result of biting into a piece of bone hidden inside a hamburger patty.

FACTS

Plaintiff/appellant Patrice Evart broke a tooth when she bit into a "hard substance" in a hamburger sandwich at a restaurant. Although Evart does not know precisely what type of hard substance the hamburger contained (because she swallowed it), for purposes of this appeal it is agreed that the substance was a piece of beef bone. Defendants/ respondents East Coast Trading, Inc. and Steve Suli (doing business as Tip Top Meats and Deli) are the manufacturers, distributors, suppliers and sellers of the hamburger patty in question here. Evart's complaint alleges theories of negligence, breach of the implied warranty of merchantability, strict liability, res ipsa loquitur, and negligence per se.

In November of 1987, respondent Suli filed the motion for summary judgment which concerns us here. Respondent East Cost Trading joined in Suli's motion. Respondents contended, in essence, that a piece of bone in ground meat is not a "foreign substance" but rather is "safe" and "natural" to the product, and a substance which a consumer should reasonably expect to encounter in a hamburger patty. Thus, respondents argued, the manufacturer of a bone-containing hamburger is not liable as a matter of law to a consumer who is injured by the bone. In opposition, Evart asserted that a bone-containing hamburger was an "adulterated" product as a matter of law, and that the question of whether a consumer should expect to meet a bone in ground meat was a triable issue of fact.

The trial court granted the respondents' motion for summary judgment. Evart appeals.

DISCUSSION

1. Is a Hamburger Containing Bone Matter "Adulterated"?

Evart relies on the provisions of the Sherman Food, Drug, and Cosmetic Law (Health & Saf.Code, § 26000 et seq.) in support of her argument that ground beef which contains a piece of bone is an "adulterated" product as a matter of law. She seeks to prove that an adulteration violating the Sherman Law establishes negligence per se.

The portions of the Sherman Law relating to adulterated food are contained in Chapter 5, Article 3 (commencing with § 26519 of the Health & Saf.Code). Sections 26534, 26535 and 26536 prohibit the adulteration of food and the sale or delivery of adulterated food. The statutory definitions of what constitutes "adulterated food" move from the general to the specific. Section 26520 states that "Any food is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to health of man or any other animal that may consume it. The food is not considered adulterated if the substance is a naturally occurring substance and if the quantity of such substance in the food does not render it injurious to health."

In addition, a food is considered to be adulterated if one of its valuable constituents is omitted, or if other substances are substituted, or if it contains concealed damage, or if any substance has been added to the food product to increase its bulk, reduce its quality or make it appear better than it actually is. ( § 26528.)

Other sections within the Sherman Law amplify the definition contained in section 26520, barring, for example, substances which are poisonous or declared unsafe by regulation ( § 26521),"unsafe additives" ( § 26522),"diseased, contaminated, filthy, putrid, or decomposed substances" ( § 26523), food produced under unsanitary conditions ( § 26524), products from diseased animals ( § 26525) and so on. One such section specifically addresses the adulteration of ground beef or hamburger: it says,"Any food is adulterated if it is chopped or ground beef or hamburger unless it is composed of voluntary striated muscle of fresh beef which does not contain any substance that is not approved by the department [of Health Services] and unless it has a total fat content which is not in excess of 30 percent by weight." ( § 26532.) Appellant reasons that because a bone fragment is not "muscle of fresh beef," the hamburger she ate was adulterated under section 26532. We disagree, because we believe her interpretation of section 26532 is taken out of context and ignores the preceding, related code sections.

When the Sherman Law statutes are read as a whole, it becomes apparent that the problem the Legislature was addressing was the sale of intrinsically unhealthful food--food which is adulterated by the use of hidden fillers or extenders, or chemical additives or preservatives, or is decayed, filthy or diseased, or prepared under unsanitary conditions, or otherwise dangerous. A fragment of beef bone in a hamburger does not fit into any of these categories; rather, it is a "naturally occurring substance." Naturally occurring substances are acceptable under section 26520, supra, so long as they are not present in such quantity as to make the food product injurious to health. ¹ Therefore, we reject appellant's argument that a hamburger containing a piece of beef bone is adulterated as a matter of law.

In this case, Evart conceded that the "hard substance" which caused her injury was a beef bone. Thus, the requirement that the food product contain only naturally occurring substances is satisfied. Nevertheless, the defendants have not presented any evidence to show that the bone in this case (or the bone particles generally contained in their ground beef) is of a size and quantity which is not injurious to the health of the consumer within the meaning of section 26520, and which conform to applicable federal regulations.

Respondents therefore failed to carry their burden of proving in their moving papers that their product was not "adulterated," and summary judgment should therefore not have been granted on this issue. Incidentally, we point out to respondents that Evart, in using the Health and Safety Code statutes regarding the adulteration of food, is not acting as a "private attorney general" prosecuting a criminal case. Rather, the statutes are being used in a civil context to establish negligence per se under section 669 of the Evidence Code. (See Clinkscales v. Carver (1943) 22 Cal.2d 72, 75, 136 P.2d 777.)

2. Are Food Manufacturers and Sellers Not Responsible for Potentially Dangerous Natural Substances Contained in their Products as a Matter of Law?

Respondents argue that summary judgment was proper as a matter of law because any consumer who bites into a hamburger should expect to find a bone therein, and he alone is responsible for guarding himself against injury. Appellant contends this is a jury question.

Respondents' argument is based upon the Supreme Court's decision in Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 59 P.2d 144. In Mix, the plaintiff was injured when he swallowed a sharp sliver of chicken bone contained inside a chicken pie. After concluding that the plaintiff could state a cause of action for breach of the implied warranty of merchantability under former Civil Code section 1735 because the furnishing of food constituted a sale, the court next addressed the question of whether plaintiff could recover on this theory. ² The court observed that the finder of fact is frequently responsible for determining whether a particular alleged defect in food rendered an item not reasonably fit for consumption. Despite this observation, the court itself determined that, first, because chicken bones were natural to chicken meat (unlike stones, wires, glass or nails), and, second, because it is "a matter of common knowledge [that] chicken pies occasionally contain chicken bones," the plaintiff was barred from recovering on an implied warranty or negligence theory as a matter of law because he should have reasonably anticipated the bone and taken measures to guard against injury. (6 Cal.2d at p. 682, 59 P.2d 144.) The court offered several additional examples of cases in which no liability should attach: these examples were a bone natural to the meat in a T-bone steak or beef stew, a fish bone in a fish dish, or a cherry stone in a cherry pie. (Ibid.) ³

Respondents seek to apply the reasoning of the Mix case to the facts alleged in this case. The problem with respondents' endeavor is that the facts alleged in this case do not satisfy both parts of the Mix two-prong analysis. The first prong is satisfied because appellant has conceded that the hard substance in the hamburger was a beef bone. However, we are not prepared to state that it is a matter of common knowledge that hamburgers contain pieces of beef bone large enough to cause injury to a consumer. By definition, an item which is "ground" is finely chopped, pulverized, comminuted ... in other words, put through a grinder. The facts of the Mix case itself--along with the other examples offered by the court--are all distinguishable from this case because none of those examples involve food products which are supposed to have been put through a grinder.

We therefore conclude that this is not the type of case which allows us to say as a matter of law that the defect did not render the food product unfit for consumption. In so deciding, we disagree with the interpretation of Mix offered by respondents, who suggest that Mix mandates a finding of fitness any time the object causing injury is natural to the food being consumed. On the...