Kilpatrick v. Superior Court (Holiday Inns, Inc.), A051001

• Decision Date: 07 January 1991
• Docket Number: No. A051001,A051001
• Citation: 277 Cal.Rptr. 230,226 Cal.App.3d 855
• Parties: Previously published at 226 Cal.App.3d 855, 233 Cal.App.3d 233 226 Cal.App.3d 855, 233 Cal.App.3d 233, 59 USLW 2464, 13 UCC Rep.Serv.2d 1019, Prod.Liab.Rep. (CCH) P 12,876 William KILPATRICK, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; HOLIDAY INNS, INC., et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

Page 230

277 Cal.Rptr. 230

Previously published at 226 Cal.App.3d 855, 233 Cal.App.3d 233

226 Cal.App.3d 855, 233 Cal.App.3d 233, 59 USLW 2464,

13 UCC Rep.Serv.2d 1019,

Prod.Liab.Rep. (CCH) P 12,876

William KILPATRICK, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent HOLIDAY INNS, INC., et al., Real Parties in Interest.

No. A051001.

Court of Appeal, First District, Division 3, California.

Jan. 7, 1991.

Rehearing Denied Feb. 1, 1991.

Review Granted March 28, 1991.

Transferred to the Court of Appeal April 23, 1992.

Genese Dopson Smith, Sarrail, Lynch & Hall, San Francisco, for petitioner.

No appearance for respondent.

Gail Y. Norton, Geordie L. Duckler, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, G. Kelley Reid, Peter E. Theophilos, La Follette, Johnson, De Haas & Fesler, William E. Joost, Jr., Mayo, Rogers & Joost, Jerald W.E. Jamison, Keith Reyen, O'Connor, Cohn, Dillon & Barr, San Francisco, for real parties in interest.

CHIN, Associate Justice.

The question presented here is whether sellers of oysters eaten raw may be held strictly liable for injuries caused by bacteria found in the tissue of the oysters. The superior court has ruled that strict liability and implied warranty causes of action are not available to the plaintiff because he ate the oysters in their natural state, and they were reasonably fit for human consumption. We conclude that the court erred in granting summary adjudication.

Facts and Procedures

In June 1988, petitioner William

Kilpatrick (hereafter plaintiff) ate raw oysters ordered from room service at the Holiday Inn at Fisherman's Wharf in San Francisco. Within a few hours, he became very ill with nausea, vomiting, and diarrhea. He had pink splotches on his legs that progressed into lesions. Plaintiff was hospitalized and underwent skin grafting and other treatment. According to his doctor, his symptoms resulted from consumption of raw oysters tainted with vibrio cholerae.

Vibrio cholerae is an acquatic bacterium present in estuarine environments of the United States, Canada, and other parts of the world. Oysters, because they feed by filtering water, accumulate vibrio cholerae bacteria in their tissues. The bacteria multiply even under refrigeration, but growth is slowed by proper cold storage. The bacteria do not affect the oysters' taste, smell, or appearance. When the oysters are eaten raw, the bacteria are transmitted to the eater. The potential for causing disease increases with the quantity of bacteria present, and the danger is greater for persons with impaired immunity.

Plaintiff filed an action for damages against Holiday Inns, Inc., and the various suppliers in the stream of distribution of the oysters (hereafter defendants). ¹ He stated causes of action for negligence, negligence per se, strict liability, and breach of warranty. Defendants filed a joint motion for summary adjudication, seeking to bar plaintiff from proceeding on the strict liability and breach of warranty causes of action. After hearing, the court granted defendants' motion. This petition followed.

Contentions of the Parties

Plaintiff contends that the court misapplied the "foreign-natural" test to conclude that the bacteria were natural to raw oysters. He argues alternatively that if the court correctly applied the foreign-natural test, it erred in failing to recognize two issues of fact: (1) whether it is common knowledge that oysters contain vibrio cholerae bacteria, and (2) whether plaintiff should have reasonably anticipated the bacteria's presence and taken measures to guard against injury.

Defendants assert that the court correctly ruled that vibrio cholerae bacteria were a natural part of the oysters' flesh and cannot be considered a defect. They say that the oysters were reasonably fit for human consumption because their constituents were both natural and reasonably anticipated. Not only is it common knowledge that food and water are not absolutely pure and contain bacteria, but plaintiff himself admitted that he knew raw oysters naturally contained some bacteria. Defendants suggest that plaintiff was injured only because his liver and immune system had already been compromised by his alcoholism. Defendants also claim that strict "products" liability law does not apply to raw foods which are not assembled or manufactured in any way.

Discussion

History of Strict Liability

This last claim fails to appreciate the early history of strict liability law and its fairly recent extension to "manufactured" products. From the birth of strict products liability in 1913 until its expansion in the 1960's, the doctrine was applied primarily to defective food and drink. (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 97, p. 690.) Strict liability without privity of contract was justified in these early cases by saying the product carried an "implied warranty" to the ultimate consumer that it was reasonably fit for use. Then Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, and adoption of section 402A of the Second Restatement of Torts by the American Law Institute in 1964, severed "strict liability" from its roots in warranty law and opened it up to products other than food and drink. (Prosser & Keeton, supra, at §§ 97, 98, pp. 690-694; Rest.2d Torts, § 402A, com. b, pp. 348-349.) Strict liability still applies to foods, even those which are neither cooked, canned, packaged, nor otherwise treated. (Rest.2d Torts, supra, § 402A, com. e, p. 350.)

Mix v. Ingersoll Candy Co.

Two California Supreme Court decisions are part of the vanguard of strict liability law for food. One, Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 688, 59 P.2d 142, said the jury should have been instructed on the implied warranty theory of strict liability. The other, Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 681-683, 59 P.2d 144, more widely cited than Goetten, held that the particular facts pleaded could not support a judgment based upon an implied warranty.

In Goetten, the plaintiff swallowed some glass while eating chow mein. The Supreme Court held that the lunch counter impliedly warranted that the food it served was wholesome and free from dangerous foreign substances. (Goetten v. Owl Drug Co., supra, 6 Cal.2d at p. 687 .) " '... As between the patron, who has no means of determining whether the food served is safe for human consumption, and the seller, who has the opportunity of determining its fitness, the burden properly rests with the seller, who could have so cared for the food as to have made the injury to the customer impossible.' ..." (Ibid.)

Mix v. Ingersoll Candy Co., supra, 6 Cal.2d 674, 59 P.2d 144, is widely credited with establishing the "foreign-natural" test for strict liability for foods. In Mix, the plaintiff was injured by swallowing a fragment of a chicken bone served in a chicken pie. He sought recovery on theories of negligence and breach of an implied warranty. In rejecting the implied warranty theory, the Mix court considered whether a restaurant keeper was obliged to present perfect food, and concluded that "reasonably fit" food did not mean perfect food: "in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption." (Id., at p. 681, 59 P.2d 144.)

The Mix court then explained that it had examined a great many cases and found none where liability was based upon the presence in food of bones which were "natural" to the type of meat served. "All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables." (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 681, 59 P.2d 144.) The plaintiff in Mix suggested that to rule against him, the Supreme Court would have to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. The court disagreed: "It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones.... Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones." (Id., at p. 682, 59 P.2d 144.)

Mix is said to have established a two-prong test. For a seller to avoid strict liability for injurious food, both prongs must be met. The first prong is satisfied if the seller can show that the harmful substance was natural to the food served. The second requires a finding that presence of the substance is common knowledge and within the reasonable expectation of the consumer. (See Evart v. Suli (1989) 211 Cal.App.3d 605, 610-611, and fns. 3 & 4, 259 Cal.Rptr. 535, where the court discusses Mix's mixed reception by courts in other states.)

Plaintiff's complaint presents "strict liability" and "breach of warranty" as two separate causes of action. The superior court applied different tests to the two causes of action. The court rejected strict liability because the oysters were eaten in their natural state and rejected implied warranty because the food was reasonably fit for human consumption. In fact, the history of strict liability shows that "strict liability" and "breach of implied warranty" are two ways of characterizing the same theory of recovery. (See Scheller v. Wilson Certified Foods, Inc. (App.1976) 114 Ariz. 159, 559 P.2d 1074, 1076; Bronson v. Club Comanche, Inc....