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Chicken Little Has a Bone to Pick - by Debra A. Newby - November 2016

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Chicken Little Has a Bone to Pick

by Debra A. Newby

DEAR READERS: Do you have a legal question on your mind? If so, please email me. Your name will remain confidential. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Dear Debra:

Last month I was dining at a local restaurant and choked on a chicken bone. Thank goodness my boyfriend knew the Heimlich. Even though I survived, the sight of food disgusted me for days. Do I have a claim or lawsuit against the restaurant? 

Signed: Not-so-chicken-little

Dear Not-So:

Well, the answer to your question is not-so clear. As with most legal issues, it depends on the facts. I need to know more. Most inquiring attorneys do, as the facts of any case power the outcome. You, as the plaintiff, (i.e. the person who files a lawsuit) has the burden of proving the facts to make your case. 

Generally, if the injury-producing object/substance is “natural” to the preparation of the food, the courts will likely rule that there is a “reasonable expectation” by its very nature that the object would be part of the food. Thus, the food cannot be considered unfit or defective. However, if the substance that causes injury is a “foreign object”, then you may have a case. You must file your lawsuit within two years of the injury. 

The classic example is a chicken bone in a chicken-based dish, which actually happened when Plaintiff Jack Clark ordered the chicken enchilada special at The Mexicali Rose Restaurant. The “special” part was the one-inch chicken bone that he swallowed, causing injury. The case made it all the way up to the California Supreme court (Mexicali Rose v. Sup. Ct. (Clark) (1993) 1 Cal.4th 617).  To this day, the gold standard for these types of cases is called “The Mexicali Rose Rule”, which in essence makes a distinction between “natural” substances and “foreign objects”. The court reasoned that a consumer should “reasonably expect” that a chicken enchilada could naturally contain chicken bones, which did not render the food “unfit or defective”.  Jack lost. 

One of my colleagues, Steven Kronenberg, a San Francisco trial attorney with The Veen Firm, wrote a great article about the limitations to the arguably vague and outdated foreign vs. natural test. (veen.com/Publications/Food-Law-Natural-Food-and-Artificial-Injustice.shtml). The problem is that our food supply is well…undiscernible. Often, we do not know the source of our food, how it is prepared, transported, and manufactured. Steven comments, as an example, that just one hamburger might contain meat from “a hundred different animals from four difference countries”. How can any ingredient in that hamburger, which might cause harm, be considered “natural”? 

If you found a piece of glass or metal, perhaps broken and dislodged from the food preparation equipment (or perhaps from the eyeglasses or hearing aid from the food preparer), then we would all agree that such is “foreign object” and the restaurant which served the food or the food manufacturer may be liable.  

So, back to your question. If you choked on a chicken bone lodged in a chicken-based entrée, you will likely lose, like Jack. Now, if that chicken bone was lodged in your chocolate mousse dessert, and you were injured, you may have a case. I’m glad that your boyfriend was your Dudley Do-Right and saved the day; but, also keep in mind that a restaurant also has a legal duty to help their customer who becomes ill or needs medical attention. CA Health & Safety Code sec. 28689. 

Perhaps we all need to be a more aware of what we put into our bodies, just as our local restaurants and food manufacturers need to be on high alert to prepare and serve fit food.

 


Debra A. Newby is a resident of Monte Rio and has practiced law for 34 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), or fax (526-7202).