QUESTION:

While eating a fish taco at a local restaurant, I bit into a rusty screw in that taco. It crushed a crown on an upper tooth that now has to be removed and replaced. I have been in discomfort and my dentist feels there is possibility of future infection due to potential damage to the tooth’s root. Should I pursue legal action?

ANSWER:

Providers of contaminated or “adulterated” food may be liable on product liability and breach of warranty theories if the injury-causing substance is foreign to the food (e.g., bits of glass or wire). In such event, the trier of fact must determine whether the foreign substance (a) could be reasonably expected by the average consumer and (b) rendered the food defective or “unfit” for human consumption. [Mexicali Rose v. Super.Ct. (Clark) (1992) 1 C4th 617, 631,633, 4 CR2d 145, 154, 156]. Except in those few cases where the threshold issue is whether a “product” was involved, plaintiff’s first task in a strict product liability action is to establish that the injury-producing object or instrumentality was legally defective. For this purpose, a product may be “defective” because of a manufacturing defect, a design defect, or a warning defect. California follows a “stream of commerce” approach, extending strict liability to those who are an “integral part of the overall producing and marketing enterprise that should bear the cost of injuries from defective products.” Thus, the strict product liability doctrine covers a broad range of potential defendants beyond the obvious manufacturer (subject, of course, to proof of defendant’s causal connection to the product defect. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

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