QUESTION:
I am 6 months pregnant and I went to a local gas station, Texaco, and bought a honey bun. As I was eating the honey bun, a co-worker saw me and snatched it from me because there was mold all over the back. There was no expiration date at all. I let the manager know about this and his response was that I should have looked at it before I ate it. He was really rude. I also went to the ER and got medicine. I have a doctor’s note and everything, and the guy never apologized. He tried to take the receipt. I still have pictures and the product. I do want to take legal action against them. Can I sue the gas station?
ANSWER:
A substance that is natural to the preparation of a food item is by its very nature reasonably expected and, as a matter of law, cannot render the food unfit or defective. Plaintiffs in such cases thus have no strict liability or implied warranty cause of action. [Mexicali Rose v. Super.Ct. (Clark), supra, 1 C4th at 630, 633, 4 CR2d at 154, 156]. However, the term “natural” refers to bones and other substances normally associated with the food item; it “does not encompass substances such as mold or botulinus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served.” [See Mexicali Rose v. Super.Ct. (Clark), supra, 1 C4th at 630, 4 CR2d at 154, fn. 5]. By the same token, a consumer’s expectations do not negate defendant’s duty to exercise reasonable care in preparing and serving food. Thus, if the presence of an injury-producing natural substance is due to defendant’s failure to exercise due care, plaintiff may state a negligence cause of action. [Mexicali Rose v. Super.Ct. (Clark), supra, 1 C4th at 630–631, 633–634, 4 CR2d at 154, 156–157].
A plaintiff who can prove the essential elements of res ipsa loquitur (injury-producing instrumentality was in defendant’s exclusive control and injury would not have occurred had due care been exercised) may be able to shift the burden of proof to defendant in an adulterated food case. [See Ford v. Miller Meat Co., supra, 28 CA4th at 1202–1203, 33 CR2d at 903]. The instrumentality may be deemed under defendant’s “exclusive control” for res ipsa purposes even though someone else had possession at the time of the accident. This concept of “constructive control” had its genesis in “breaking bottle” cases—i.e., where the bottle (the instrumentality) is under the manufacturer’s control at time of bottling but is then delivered to a retailer and ultimately to the consumer who suffers the injury. Here, res ipsa may be invoked so long as plaintiff demonstrates that the condition of the instrumentality (e.g., the bottle) remained unchanged (was not mishandled) after it left defendant’s control, thus negating any intervening cause. [See Zentz v. Coca Cola Bottling Co. (1952) 39 C2d 436, 444, 247 P2d 344, 348]. It would be best to seek personal assistance from a lawyer to help you in filing a personal injury claim.
