Unformatted text preview: Week Nine
Liability and the Sale of Food.
*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
*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.
*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
*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:
*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
*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:
*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
*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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- Fall '11