Zabner v. Howard Johnson's, Inc., 568

• Decision Date: 25 August 1967
• Docket Number: No. 568,568
• Citation: 201 So.2d 824
• Parties: Bertha Belle ZABNER, Appellant, v. HOWARD JOHNSON'S, INCORPORATED, Appellee.
• Court: Florida District Court of Appeals

Page 824

201 So.2d 824

Bertha Belle ZABNER, Appellant, v. HOWARD JOHNSON'S, INCORPORATED, Appellee.

No. 568.

District Court of Appeal of Florida, Fourth District.

Aug. 25, 1967.

Horace E. Beacham, Jr., Palm Beach, for appellant.

John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellee.

CROSS, Judge.

Appellant (plaintiff) appeals from a final summary judgment entered in favor of the appellee (defendant) in an action for damages for breach of an implied warranty and negligence.

Plaintiff, a patron of Howard Johnson's Restaurant, ordered a dish of maple walnut ice cream, and while consuming it at the restaurant a piece of walnut shell concealed therein punctured plaintiff's upper gums, fractured and damaged some of her teeth.

The trial court considered both causes of action were controlled by the same principles of law and entered a final summary judgment for the defendant. The judgment was entered on the theory that the harmful substance was natural to the product sold and could not be called a foreign substance. The trial judge applied the so-called foreign-natural test.

There are jurisdictions which represent the view that as a matter of law a harmful substance present in food which is natural to it cannot be a legal defect or a breach of the implied warranty of reasonable fitness of such food. Mix v. Ingersoll Candy Co., 1936, 6 Cal.2d 674, 59 P.2d 144. This case was brought both on the theory of implied warranty and of common-law negligence. There the plaintiff was injured by a chicken bone in chicken pot pie. On demurrer the court held the defendant was not liable under either theory because chicken bones were natural to the meat served and not a foreign substance, and it was common knowledge chicken pies occasionally contain chicken bones, and therefore their presence ought to be anticipated and guarded against by the consumer.

The reasoning of the Mix case has been followed by four intermediate appellate courts: Silva v. F. W. Woolworth Co., 1938, 28 Cal.App.2d 649, 83 P.2d 76 (implied warranty and negligence alleged), a turkey bone imbedded in the dressing of a special plate of roast turkey; Lamb v. Hill, 1952, 112 Cal.App.2d 41, 245 P.2d 316 (negligence alleged), a fragment of chicken bone in chicken pie; Goodwin v. Country Club of Peoria, 1944, 323 Ill.App. 1, 54 N.E.2d 612 (implied warranty and negligence), a bone in creamed chicken made from turkey meat (query: whether a turkey bone is natural to creamed chicken); Norris v. Pig'n Whistle Sandwich Shop, Inc., 1949, 79 Ga.App. 369, 53 S.E.2d 718 (negligence), a particle of bone in a barbecued pork sandwich; and Davison-Paxon Co. v. Archer, 1954, 91 Ga.App. 131, 85 S.E.2d 182 (negligence), turkey bone in creamed turkey.

The naturalness doctrine was also applied in Brown v. Nebiker, 1941, 229 Iowa 1223, 296 N.W. 366 (implied warranty and negligence), a sliver of a bone in a pork chop swallowed by the deceased; in Adams v. Great Atlantic & Pacific Tea Co., 1960, 251 N.C. 565, 112 S.E.2d 92 (implied warranty), a partially crystallized grain of corn in corn flakes; and in Shapiro v. Hotel Statler Corp., S.D.Cal.1955, 132 F.Supp. 891 (implied warranty), a fish bone in Hot Barquette of Seafood Mornay, made of several kinds of fish. The rule was recognized but held not applicable in Arnaud's Restaurant, Inc. v. Cotter, 5 Cir. 1954, 212 F.2d 883 (negligence and implied warranty), crab shell in fish dish.

The 'foreign-natural' test as applied as a matter of law by the trial court does not recommend itself to us as being logical or desirable.

The reasoning applied in this test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. A nutshell natural to nut meat can cause as much harm as a foreign substance, such as a pebble, piece of wire or glass. All are indigestible and likely to cause the injury. Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.

It is true one can expect a t-bone in t-bone steak, chicken bones in roast chicken, pork bone in a pork chop, pork bone in spare ribs, a rib bone in short ribs of beef, and fish bones in a whole baked or fried fish, but the expectation is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl, or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken.

The test should be what is 'reasonably expected' by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.

The 'reasonable expectation' test as applied to an action for breach of the implied warranty is keyed to what is 'reasonably' fit. If it is found that the shell of the walnut ought to be anticipated in walnut ice cream and guarded against by the consumer plaintiff, then the ice cream was reasonably fit under the implied warranty. As applied to the action for common-law negligence, the test is related to the foreseeability of harm on the part of the defendant. The defendant is not an insurer but has the duty of ordinary care to eliminate or...