Mexicali Rose v. Superior Court

• Citation: 1 Cal.4th 617,4 Cal.Rptr.2d 145
• Decision Date: 23 January 1992
• Docket Number: No. S012707,S012707
• Court: United States State Supreme Court (California)
• Parties: , 822 P.2d 1292, 60 USLW 2508, 16 UCC Rep.Serv.2d 607, Prod.Liab.Rep. (CCH) P 13,026 MEXICALI ROSE et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; Jack A. CLARK, Real Party in Interest

Page 145

4 Cal.Rptr.2d 145

1 Cal.4th 617, 822 P.2d 1292, 60 USLW 2508,

16 UCC Rep.Serv.2d 607,

Prod.Liab.Rep. (CCH) P 13,026

MEXICALI ROSE et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent;

Jack A. CLARK, Real Party in Interest.

No. S012707.

Supreme Court of California

Jan. 23, 1992.

[1 Cal.4th 619] [822 P.2d 1293] Kincaid, Gianunzio, Caudle & Hubert, John P. Caudle, Scott A. Bovee and M. David DeSantis, Walnut Creek, for petitioners.

Steefel, Levitt & Weiss, Leonard R. Stein and Daryl S. Landy, San Francisco, as amici curiae on behalf of petitioners.

No appearance for respondent.

William L. Berg, Alameda, for real party in interest.

Douglas Devries, Sacramento, Leonard Sachs, Encino, Bruce Broillet, Santa Monica, Laurence Drivon, Stockton, Robert Steinberg, Los Angeles, Roland Wrinkle, North Hollywood, Harvey R. Levine, San Diego, and David Harney, Los Angeles, as amici curiae on behalf of real party in interest.

LUCAS, Chief Justice.

We granted review to consider the continuing vitality of Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 59 P.2d 144 (hereafter Mix ), which held 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. ¹ (Id. at p. 682, 59 P.2d 144.) Mix distinguished bones and other substances "natural" to certain types of food, from "foreign substances" (such as a nail, wire or glass), which Mix determined cannot be anticipated by a reasonable consumer. ² Mix concluded that "[b]ones 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

[822 P.2d 1294] bones." (6 Cal.2d at p. 682, 59 P.2d 144.) Under Mix, therefore, a substance causing injury that is natural to the food served can never lead to tort or implied warranty liability

[1 Cal.4th 620] Real party in interest (plaintiff), Jack A. Clark, was a customer at petitioners' (defendants') restaurant. He ordered a chicken enchilada and sustained throat injuries when he swallowed a one-inch chicken bone contained in the enchilada. He brought an action for damages based on theories of negligence, breach of implied warranty, and strict liability. He alleged defendant Mexicali Rose negligently left the bone in the enchilada and the food was unfit for human consumption. He also asserted he did not expect to find a bone, and it is not common knowledge there may be bones in chicken enchiladas. In addition, plaintiff sought punitive damages, alleging malice, fraud, and oppression based on the allegation defendants initially refused to obtain medical assistance for him.

The trial court overruled defendants' demurrer, but the Court of Appeal issued a writ of mandate, directing the trial court to sustain the demurrer on all causes of action. The Court of Appeal noted it was compelled, under principles of stare decisis, to follow the Mix rule precluding liability for injuries caused by naturally occurring substances in food. On appeal, plaintiff asserts the foreign-natural test draws an arbitrary line of liability, focusing on the substance itself, and unfairly exonerates the restaurateur from all liability simply because the injury-producing substance happens to be "natural" to the food served. Pointing to changes in technology that have occurred during the past 55 years, plaintiff asserts defendants should be held responsible for the failure to remove all bones from its chicken enchiladas because it is today easier to remove bones from food than it was in 1936, when Mix was decided. Plaintiff contends we should abandon the foreign-natural test of Mix, supra, 6 Cal.2d 674, 59 P.2d 144, and adopt a test developed in other jurisdictions based on the "reasonable expectations" of the customer. (See, e.g., Ex Parte Morrison's Cafeteria of Montgomery, Inc. (Ala.1983) 431 So.2d 975, 978 (Morrison's Cafeteria ).)

Under the foregoing proposed test, according to plaintiff, defendants could be held (i) liable in negligence for their failure to exercise reasonable care in the preparation of the food, (ii) liable for violating California's statutory implied warranty because a chicken bone in a chicken enchilada renders the latter unfit for human consumption under the implied warranty of merchantability and fitness of California Uniform Commercial Code sections 2314 and 2315, and (iii) strictly liable because the food item was "defective" under the theory of Restatement Second of Torts section 402A, comment i, imposing strict liability when food is "dangerous beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

The question we address, therefore, is whether a restaurant keeper may be held liable for serving food containing substances natural to the product that, [1 Cal.4th 621] when consumed by the patron, cause injury. As explained below, we agree with plaintiff that a "reasonable expectation" test is applicable in this context and, in part at least, is consistent with the development of tort law in our jurisdiction. Accordingly, we adopt that test as our own. As we further explain, although we conclude that under a reasonable expectation test plaintiff may not state a cause of action under the theories of strict liability or breach of the implied warranties of merchantability or fitness, we conclude that under the same test, he may state a cause of action in negligence based on defendants' asserted failure to exercise due care in the preparation of the chicken enchilada.

1. Mix and its progeny: The foreign natural test and the reasonable expectations of the consumer

An early rule of implied warranty in cases involving foreign or adulterated food substances was adopted, as of 1960, by 17 jurisdictions, including California. (Prosser, The Assault Upon the Citadel (Strict

[822 P.2d 1295] Liability to the Consumer ) (1960) 69 Yale L.J. 1099, 1106.) A review of the California cases reveals that the acceptance of an implied warranty rule against manufacturers in cases involving unfit foodstuffs was based on the rationale that a manufacturer that sold food items could no longer hide behind the shield of privity to absolve itself of liability. (Klein v. Duchess Sandwich Co., Ltd. (1939) 14 Cal.2d 272, 93 P.2d 799 (Klein ); Vaccarezza v. Sanguinetti (1945) 71 Cal.App.2d 687, 163 P.2d 470 (Vaccarezza ).)

In Klein, supra, 14 Cal.2d 272, 93 P.2d 799, the plaintiff's husband purchased a sandwich that was infested with maggots. The sandwich had been prepared by the defendant and distributed to a restaurant for sale. (Id. at pp. 273-274, 93 P.2d 799.) The plaintiff ate the sandwich and became ill. Klein interpreted the term "buyer" under the Uniform Sales Act (making sellers of adulterated food liable to buyers) to include the "ultimate consumer," and held that the warranty of fitness should apply to a "manufacturer" of foodstuffs, notwithstanding the fact that a retailer may have sold the goods to the consumer. Klein determined that foodstuffs do not fall within the general rule of privity between the manufacturer and the consumer, even though the purchase is made through a retailer. (Id. at p. 284, 93 P.2d 799; see also Vaccarezza, supra, 71 Cal.App.2d 687, 689, 163 P.2d 470 [implied warranty imposes an "absolute liability" on manufacturers of food products].)

This same implied warranty for foreign or adulterated substances in food was extended to independent restaurant owners who purchased the food from outside manufacturers in Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 685, 59 P.2d 142, filed the same day as Mix, supra, 6 Cal.2d 674, 59 P.2d 144. In Goetten, a [1 Cal.4th 622] patron choked on a piece of glass in a serving of chow mein at the defendant's lunch counter. Initially, we rejected the defendant's contention that furnishing food did not constitute a sale for purposes of statutory implied warranty, and based our holding on the fact that restaurateurs have the food under their control at the time it is served to the patron. (Goetten, supra, 6 Cal.2d at p. 687, 59 P.2d 142.) We imposed on the restaurateur a burden to inspect the food, reasoning that: "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.)

A different rule developed when the injury was caused by an object deemed natural to the food being served. In Mix, supra, 6 Cal.2d 674, 59 P.2d 144, the plaintiff swallowed a fragment of chicken bone contained in a chicken pot pie he consumed in the defendant's restaurant. Mix affirmed the trial court order dismissing the plaintiff's complaint for negligence and breach of implied warranty. We held there could be no liability under either an implied warranty or negligence theory, explaining that the statutory implied warranty of fitness of food (see former Civ.Code, § 1735, replaced by Cal.U.Com.Code, §§ 2314, 2315) ³ does

[822 P.2d 1296] not make the purveyor an insurer, but merely requires that food be reasonably fit for human consumption. Although we conceded that it is frequently a question for the jury to determine whether an injury-producing substance present in food makes the food unfit for consumption, we maintained that a court in appropriate cases may find as a matter of law that an alleged harmful substance in food does not make the food defective or unfit for consumption. We explained our holding as follows

[1 Cal.4th 623] "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...