Mexicali Rose v. Superior Court

Supreme Court of California · 1992 · Torts

TortsProducts liabilityNegligenceImplied warrantyFood injuryrestaurant foodchicken bonenatural substance

Facts

Plaintiff was a customer at defendants' restaurant and ordered a chicken enchilada. He allegedly suffered throat injuries when he swallowed a one-inch chicken bone contained in the enchilada. He alleged defendants negligently left the bone in the food and that the food was unfit for human consumption, asserting negligence, breach of implied warranty, and strict liability. He also alleged he did not expect to find a bone in a chicken enchilada and that it is not common knowledge that chicken enchiladas may contain bones.

Issue

Whether a restaurant may be liable when a patron is injured by a substance natural to the food served, and specifically whether California should continue to follow Mix's foreign-natural test barring recovery whenever the injury-producing substance is natural to the food. The court also considered which theories of recovery, if any, remain available when the substance is natural rather than foreign.

Rule

If the injury-producing substance is natural to the preparation of the food served, it is deemed reasonably expected by its nature, so the food is not unfit or defective for purposes of strict liability or implied warranty; however, the patron may still sue in negligence if the presence of that natural substance resulted from the restaurateur's failure to exercise due care in food preparation. If the substance is foreign to the food served, the patron may also state causes of action for implied warranty and strict liability, and the trier of fact determines whether the substance could reasonably be expected by the average consumer and whether it rendered the food unfit or defective.

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

At a restaurant in Sacramento, Nina Ortiz orders fish chowder from Gold Harbor Kitchen. She swallows a fish bone and suffers a throat laceration. Her complaint alleges strict liability, breach of implied warranty, and negligence, asserting the cook failed to use due care in preparing the chowder.

Which claim or claims should survive if the bone is natural to the preparation of fish chowder?

Explanation. If the injury-producing substance is natural to the preparation of the food served, the food is not unfit or defective for implied warranty or strict liability. But the restaurant still owes a duty of ordinary care in preparation, so negligence may be pursued if the natural substance remained because of lack of due care. (Derived from Mexicali Rose v. Superior Court (n.d.).)