Hotel, Restaurant, and Travel Law

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Unformatted text preview: Week Nine Week Chapter 11 Liability and the Sale of Food. Liability *Law imposes liability on facilities that serve tainted food and make claims about food that are not truthful. *Possible grounds on which a food­service provider may be liable: *Breach of express warranty. *Breach of warrant of merchantability *Strict products liability *Negligence *Miscellaneous statutory violations may also create liability for fines and/or damages. *Breach of an Express Warranty *As with an express contract, a seller of product can make a warranty about the condition, quality, origin or material of the product by making an express statement about the product. *This warranty may be created by product packaging, catalogue illustration, a hangtag attached to the product, any other oral or written statement made by the seller at or before the time of the sale. *Generally, the only party who can enforce an express warranty, would be a party in privity (who contracted with) with the seller. As with other breaches of contract, strangers to the contract usually do not have a right to enforce the contract. *Such a warranty may be created by a menu description: *Maine Lobster (warrants that it was caught in Maine). *Prime Sirloin (warrant that the meat is U.S. grade prime and that it is a sirloin cut). *On the other hand, some statements are product names and not warranties, i.e. Kentucky Fried Chicken does not have to come from Kentucky. *The Implied Warranty of Merchantability *This warranty is created by a law, the Uniform Commercial Code (UCC), which is a set of state statutes that regulate the sale of goods statutes that regulate the sale of goods *Goods are tangible personal property, including food. *The UCC does not regulate services, intangible personal property, or real property (land and that which is attached or in the land). *This implied warranty attaches to a sale of goods by a merchant seller of those goods. *A merchant seller is one who sells those goods in the regular course of their business. *The merchant seller is held to a higher standard of care than a casual seller. *The implied warranty of merchantability warrants that the goods are fit for their ordinary use and are of at least average quality at the time of the sale. *This warranty is made, even if nothing is said by the parties in the transaction. *Merchantable food must be fit for human consumption, will not make people ill who eat it. *It does not have to be nutritional or taste good, just edible. *Inappropriate objects in food make it unmerchantable, as does food which is infected with harmful bacteria or virus, spoiled, and undercooked. *If there are object in the food, the issue will be determined by one of two tests, depending upon which state the action lawsuit is based in. *Foreign/Natural substance test ­ whether the object is unrelated to the components or ingredients of the product, it is foreign and a breach. *Reasonable expectation test ­ whether the object found in the food ought to have been anticipated by a reasonable consumer under the circumstances. *Don’t worry about which test is the majority rule. *The Foreign/Natural substance test is an objective test, which looks at what belongs in that food product. *A piece of clamshell in a bowl of clam chowder would be natural and not a breach under this test. *A black widow spider in a bunch of California grapes might be natural as it is common in those vineyards and could have been packaged with the grapes. *A thumbtack in a pizza would be foreign and a breach. *Reasonable expectation test is subjective and looks at the mind of the reasonable consumer. *A piece of clamshell would be expected in a bowl of clam chowder and not a breach under this test. *A black widow spider in a bunch of California grapes would probably not be expected in grapes sold in Rhode Island and thus a breach. That same fact pattern might not be a breach if the grapes were sold in California, where a consumer might expects its presence. *A thumbtack in a pizza not be expected and is a breach anywhere that pizza is sold. *Food product can be unmerchantable for other reasons: *Rancid or spoiled food; *Adulterated or contaminated food; *Improper handling and preparation; or *Time and temperature abuse *Significantly burned food. *Food may be unmerchantable because it is too hot and may cause burns. *Foods or beverages contaminated with bacteria, viruses, and parasites, may cause illness or injury, though some bacteria may be natural to the food product, such as raw seafood and not a breach of the warranty of merchantability. Liability may result from another theory, though. *In any event, it is the plaintiff’s problem to prove that food purchased at the defendant’s establishment was the cause of the illness. *Depending upon the state, privity of contract might not be necessary for a plaintiff to succeed in a breach of implied warranty of merchantability action. *Recovery is often expanded to include any foreseeable plaintiff. foreseeable plaintiff. *Similar to the potential plaintiffs in a negligence action. *Negligence can be the basis for a lawsuit involving food that causes harm. *A restaurant, or other food seller, owes a duty to its customers and to other foreseeable plaintiffs *That duty is to prepare, maintain and serve food in a reasonable manner. *If that duty is breached, there can be liability for any foreseeable harm. *A food seller must take precautions to protect the plaintiffs. *Example: A beverage that is too hot to drink could be negligence, as well as unmerchantable. *Reasonable precautions to avoid negligence: *Drinks should be served at temperature in line with industry standards. *Coffee and tea makers can be preset to safe­to­ drink temperatures. *Lids should be provided for carryouts. *Warn customer verbally and/or put warning on cup. *If prior complaints, fix the problem. *If a patron has allergies, a restaurant must act reasonably in addressing the patron’s needs. To do otherwise could be negligence. *Restaurant patrons frequently request that certain ingredients be eliminated from their food, and such a request may be prompted by a food allergy. *Wise policy mandates that substitute food be served on a clean dish. *Even a small residue may be sufficient to cause an allergic reaction. *If an item that is commonly an allergen, such as peanuts, is not listed in a menu description, but may be contained in the food, the restaurant may have an affirmative duty to warn a patron that the ingredient may be present. *Another potential theory of liability for the serving of food is Strict Product Liability. of food is Strict Product Liability. *Strict product liability is a tort, that is neither an intentional nor unintentional tort. It is a strict liability tort, also discussed in Week Five of this course. *Elements of the lawsuit, with regard to food product: *A product has a defect (in design, manufacture, instructions for use or assembly, or insufficient warnings. *The defect makes the food product unwholesome. *The defect existed when the product left defendant’s control. *The defect caused plaintiff’s harm. *As with negligence, privity of contract is not necessary, but unlike negligence, neither is foreseeability. *If the cause of the harm is inherent in the food, such as very hard biscotti, then it is not a defect and should not result in strict product liability. *There can also be various statutory violations which can result in fines to the restaurant or, in some instances, damages to harmed plaintiffs. *False food claims ­ Various statutory laws require accuracy in claims made by restaurants about their food. *Most states have laws to eliminate misleading food advertisements and labels. *There are also federal consumer protection laws that may give rise to fines. *Controversies can result from: *Omitting ingredients; *Mistaking a product’s origin; *Misdescribing a dish; *Inaccurately identifying the cooking method; or *False health of nutritional claims. *Some statements are simply product names and would not be false statements about the product, such as: *Swiss cheese; or *Kentucky Fried Chicken. *Other menu descriptions may not be clearly deceptive, due to unclear industry definitions, such deceptive, due to unclear industry definitions, such as: *Vegetarian; or *Organic. *As consumer interest in healthy eating has grown, food producers have tried try to capitalize on those interests through creation of healthier foods, or sometimes through creation labeling and marketing. *Under the Nutritional Labeling and Education Act of 1990, the FDA has promulgated regulations to protect consumers. *Mandatory nutritional labels are required for all packaged foods, and the act requires what information must be on labels. *The labels must include such information as: *Serving size. *Fat content. *Fiber content. *RDA percentages. *Although the FDA does not require nutritional information to be on a restaurant’s menu, it must be available upon request. *When a restaurant makes a claim about the nutritional content or healthfulness of a food product, it must provide to patrons, upon their request, the same information required to be on a packaged food label. *Many chain restaurants have this information already available, due to strict portion control. *Smaller independents, often are not in compliance, though there is software available that can create this information from a recipe. *Statutory laws in most states prohibit advertising food as kosher unless it is. *Promoting non­kosher food as kosher violates these laws. *States may even treat such conduct as criminal. *Describing non­kosher food as kosher would also be a breach of an express warranty. be a breach of an express warranty. Relationships between Fast-Food Operations and Hotels Hotels *Where a hotel serves food that uses the name of another company, such as Pizza Hut pizza, there is a question of who would be liable if the food harms a hotel guest. *If the hotel made the product and the other company only had their name on the box: *The hotel could be liable for breach of warranty of merchantability, negligence or strict product liability. *The other company would probably not be liable for anything. *If the pizza hut made the product and the hotel just heated and served it: *The hotel could be liable for breach of warranty of merchantability or strict product liability as they are still selling it, but probably not for negligence. *The other company could be liable under all three theories. *The relationship of the hotel and the other company is not one opf employer and employee, so respondeat superior would not apply. *A state or local government may institute a ban of some kind that would apply to a restaurant. *The City of Chicago enacted a ban on foie gras in is restaurants. *Some cities or states are banning trans fats. *Many states and local governments restrict or prohibit smoking in public buildings, including restaurants. *There may be exceptions for certain businesses, such as cigar bars. *Violation of these statutory bans generally give rise to liability for fines, but not for civil damages. *A restaurant may be motivated to give leftover/unused food to a charitable organization. *Liability for harm caused to a foreseeable plaintiff does not depend upon whether the restaurant was paid for the food. *There is also less control available over the food before it reaches the person who will ultimately consume it. *For these reasons, it might not be advisable to donate any foods that are prepared in­house or anything that is perishable, as the restaurant could be liable for any harm caused. *Non­perishable pre­packaged goods, such as canned goods, would create much less risk of liablity for the donating business. *Restaurants, and any other business, owe a duty to protect those who are on­premises from foreseeable harm, including harm caused by other patrons. *That duty is breached and liability results when a patron is disruptive and the facility fails to eject that customer *If a patron is injured in a fight with another customer, and it could have been foreseen, the facility will be liable. *If employees are unable to remove a troublemaker, call the police. *Conversely, if a fight occurs suddenly, with no warning, no liability results as the harm was not foreseeable. *Additional security personnel may also be called for (reasonable) if there have been instances of fights or attacks in the past. ...
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This note was uploaded on 11/06/2011 for the course LAW 2010 taught by Professor Davidspatt during the Fall '11 term at Johnson & Wales University- Charlotte.

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