QUESTION:
My boyfriend just bought a sub from the deli at El Ray Grocery store. I took a bite out of it and something split my lip open. It bled for almost 5 minutes! Can I sue them for this? When I called them, they said “Yeah, something could’ve fallen into the bread. Come in for an incident report and bring the sub for a refund.” Can I sue El Ray Gorcery?
ANSWER:
Providers of contaminated (“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]. A plaintiff who can prove the essential elements of res ipsa loquitur, wherein the 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]. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury case.