QUESTION:
What can I do if I bit on a bone inside a McNuggets from McDonald’s? It was huge and looked like a half of a chicken wing bone.
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). However, a substance that is natural to the preparation of a food item (e.g. chicken bone) 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. But if there is a presence of injury-producing natural substance in a food product as a result of the producer’s failure to exercise due care, plaintiff may state a negligence cause of action, because a consumer’s expectations do not negate defendant’s duty to exercise reasonable care in preparing and serving food [Mexicali Rose v. Super.Ct. (Clark)].
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. Res ipsa loquitur is an evidentiary rule, and in California, the doctrine is defined as a presumption affecting the burden of producing evidence (Ev.C. § 646).
Plaintiffs seeking to invoke res ipsa loquitur have the burden of establishing the following three conditions (California Civil Jury Instructions 417):
- That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
- That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and
- That the accident was not due to any voluntary action or contribution on plaintiff’s part
Work with an experienced personal injury attorney to know more about the potential liabilities of food providers if they serve a product with injury producing contaminant.