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Diner in Restaurant Sinks Her Teeth Into a Court Case

June 22, 1989|JEFFREY S. KLEIN

If the soup is cold or the steak is overcooked, you can always send it back to the kitchen. But what can you do if you bite into a juicy hamburger patty and break a tooth?

You can sue.

That's the conclusion of a recent California Court of Appeal case. Patrice Evart broke a tooth when she bit into a hamburger and struck a hard object that felt like a piece of bone. She sued the manufacturer of the hamburger and the restaurant that served it, among others.

Los Angeles trial judge David M. Schacter dismissed the case before trial in late 1987, apparently convinced that a piece of bone was not a foreign object, but a natural product that a consumer should reasonably expect to encounter in a hamburger patty.

Last week, the appellate court overturned the dismissal, allowing the case to proceed to trial, after concluding that a jury should decide whether consumers can reasonably expect to find and guard against bones in ground beef.

Successful Suits

There have been many cases in which customers successfully sued restaurants because of injuries they suffered from biting into food containing foreign objects such as glass or metal. What made this case a little unusual was the fact that the object that caused the injury was not strictly a foreign object, but a natural part of the foodstuff itself.

However, it wasn't the first time a court faced the problem. Other cases involved cherry pies with cherry pits, turkey dressing with turkey bones and even an oyster containing a pearl.

In a 1936 California Supreme Court case, a man's chicken-pot-pie dinner was the source of the controversy. Harry F. Mix was injured when he swallowed a sliver of a chicken bone. In that case, the court dismissed the lawsuit, saying that it is common knowledge that "chicken pies occasionally contained chicken bones."

But in the hamburger patty case, the court wouldn't go that far. It is not common knowledge that bones are found in ground beef, the court ruled, and so a jury should determine whether anyone was negligent in allowing the bone to remain in the patty.

Lawyers use various theories to pursue these cases, including negligence, breach of the implied warranty of merchantability, and res ipsa loquitur, a Latin phrase meaning "the thing speaks for itself."

As a consumer, you should know that a restaurant, its supplier, and even the local butcher may be responsible for your injury if food is not prepared properly. Before you rush off to retain a lawyer, however, you might try to resolve the problem informally, especially if your injuries are minor.

Free Consultation

Most lawyers will consult with you free of charge about a possible personal injury suit. These cases are usually handled on a contingency fee basis, which means you will pay the attorney from 25% to 50% of the recovery, but won't be charged if you don't win anything.

If you are injured in a restaurant, make sure you register a complaint with management at the time of the injury. Save any relevant evidence, such as the piece of glass or bone. And keep track of the costs of your medical care. In addition to paying the medical bills, you should also be compensated for your pain and suffering.

Klein cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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