The plaintiff, a New England native, ordered fish chowder at the defendant's Boston restaurant after being told clam chowder was unavailable. The chowder contained haddock, potatoes, milk, water, and seasoning, and the fish and potatoes were served in chunks. After eating three or four spoonfuls, the plaintiff felt something lodge in her throat, and a fish bone was later removed during a second esophagoscopy at Massachusetts General Hospital. The plaintiff suffered nontrivial injury, but there was no claim that the fish itself was tainted or otherwise unwholesome apart from the bone.
Issue
Does the presence of a fish bone in fish chowder constitute a breach of the implied warranty of merchantability or fitness for ordinary eating purposes under the Uniform Commercial Code? More specifically, is such a bone a foreign substance that makes the chowder unwholesome or unfit to be eaten?
Rule
Food sold by a restaurant is subject to the implied warranty of merchantability under UCC § 2-314, but the warranty is not breached by the presence of a natural substance whose occasional presence in the particular dish is reasonably to be anticipated by the ordinary consumer. If the substance is consistent with the food's traditional preparation and does not impair its ordinary fitness or merchantability, there is no breach.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
At a dockside restaurant in Portland, Maine, Nora Keane ordered a traditional fish stew made with large chunks of cod and potatoes. On her third bite, she swallowed a small fish bone and sued the restaurant for breach of the implied warranty of merchantability, alleging the stew was unfit to eat.
How should the court most likely rule on Nora's implied-warranty claim?
Explanation. The majority rule is that restaurant food is sold with an implied warranty of merchantability, but that warranty is not breached merely because the dish contains a natural substance whose occasional presence is reasonably to be anticipated in that particular food. A fish bone in a traditional fish stew with chunks of fish is analogous to a bone in fish chowder: it is naturally associated with the fish and does not necessarily render the dish unfit for its ordinary purpose. The rule does not turn on a strict no-injury or no-substance standard. (Derived from Webster v. Blue Ship Tea Room, Inc. (n.d.).)