Cushing v. Rodman

United States Court of Appeals for the District of Columbia · Torts

TortsImplied WarrantyFood Liabilityimplied warrantywholesomenessfood served on premisesrestaurant liabilitylatent defect

Facts

On November 24, 1934, the plaintiff ordered coffee and a roll at the defendant's drug store and lunch room in the District of Columbia. A waiter selected the roll from a receptacle behind the counter; the plaintiff did not choose the particular roll. The roll contained a pebble, which broke the plaintiff's tooth and caused pain, disfigurement, and dental expense. The defendant had bought the rolls that morning from a reputable local confectionery, and the defect could not have been discovered in the ordinary course of serving without destroying the roll's marketability.

Issue

Whether a seller who serves food for consideration for immediate consumption on the premises impliedly warrants its wholesomeness when the food was purchased from another and the latent defect was not discoverable except by destroying the article's marketability. Put differently, whether liability may rest on implied warranty rather than negligence alone in that situation.

Rule

When food is served for consideration for immediate consumption on the seller's premises, there is an implied warranty that the food is wholesome. That warranty applies even if the seller did not prepare the food, purchased it elsewhere, and could not effectively inspect for the defect without destroying marketability; breach supports recovery of consequential damages without proof of negligence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a lunch counter in Baltimore, Nina Patel ordered a bowl of soup and a biscuit and ate at the counter. The biscuit, purchased that morning from Harbor Crest Bakery, contained a small metal fragment hidden inside, breaking Nina's molar; the fragment could not have been found without tearing the biscuit apart, and the lunch counter used reasonable care.

If Nina sues only on an implied-warranty theory, which is the strongest argument for her recovery?

Explanation. The majority adopted an implied warranty of wholesomeness when food is served for consideration for immediate consumption on the seller's premises. The rule applies even if the food was purchased from another and the defect was latent and not discoverable without destroying marketability. Negligence need not be shown.