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Goodman v. Wenco Foods Inc.

Filed: December 18, 1992.


On appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, Exum


EXUM, Chief Justice.

The plaintiff was injured when he bit down on a small bone in a hamburger sandwich purchased at Wendy's Old Fashioned Hamburgers. He brought actions in negligence and breach of the implied warranty of merchantability against Wenco Management, Wenco Foods, Inc., d/b/a Wendy's Old Fashioned Hamburgers [hereinafter Wendy's], and against Greensboro Meat Supply Co. [hereinafter GMSC], which allegedly supplied the hamburger meat for that Wendy's restaurant.

The trial court granted summary judgment on both claims for defendant GMSC, but allowed plaintiff's action against Wendy's to go to trial. At trial, the trial court allowed Wendy's' motion for directed verdict on both claims at the close of plaintiff's evidence.

In its majority opinion as reported the Court of Appeals reversed both the directed verdict for Wendy's and summary judgment for GMSC. A majority of the Court of Appeals panel (Judges Arnold and Greene) concluded that plaintiff's implied warranty of merchantability claims should have survived Wendy's' motion for a directed verdict and GMSC's motion for summary judgment. Only Judge Greene, writing the principal opinion for the panel, concluded that the negligence claims should also have survived these motions by defendants. Only Chief Judge Hedrick concluded that the trial court correctly entered summary judgment for GMSC and directed verdict for Wendy's on both the warranty and negligence claims.

We affirm the Court of Appeals' decision affirming the directed verdict on plaintiff's negligence claim against Wendy's. We affirm the Court of Appeals decision reversing directed verdict for Wendy's and summary judgment for GMSC on plaintiff's breach of the implied warranty of merchantability claims. We conclude, however, that the majority of the Court of Appeals erroneously affirmed summary judgment for GMSC as to plaintiff's negligence claim; we therefore reverse this decision. The result is that the case is remanded for trial on plaintiff's implied warranty of merchantability claims against both defendants and on plaintiff's negligence claim against GMSC.


At trial, only plaintiff offered evidence. Plaintiff testified that on 28 October 1983, he and an employee stopped for lunch at the Hillsborough Wendy's restaurant. Plaintiff ordered a double hamburger and had eaten about half of it when he bit down and felt immediate pain in his lower jaw. Plaintiff took from his mouth the hamburger, a piece of bone that did not come from his mouth, and pieces of teeth. Plaintiff described the piece of bone as triangular, one-sixteenth- to one-quarter-inch thick, one-half-inch long and tapering from one-quarter inch at its base to a point. He indicated that, as far as he knew, the bone was a cow bone. It was about the size of his small fingernail, thick on one side, shaved down to a point on the other, and too small to be flexible. Plaintiff stated the bite containing the bone was mostly meat and that the bone had been in the meat, but he admitted it was possible the bone could have been in any of the condiments or in the bun. Plaintiff's luncheon companion testified he witnessed the incident and saw plaintiff show the bone to the restaurant manager. He noted plaintiff missed at least one day of work. Plaintiff's wife testified as to the extent and intensity of her husband's pain resulting from the broken teeth, and plaintiff's dentist and endodontist testified as to the dental damage, their work on his teeth over several months, and the cost of their services.

Plaintiff also introduced into evidence a copy of Wendy's' grinding specifications for its meat suppliers, which require that chopped meat be "free from bone or cartilage in excess of 1/8 inch in any dimension that is ossified" prior to grinding and packing.

The owner of GMSC, Jake Leggett, called as a witness by plaintiff, testified that in 1983, and at all times relevant to this incident, GMSC supplied all the ground beef to the Wendy's restaurant in Hillsborough. The beef was certified by the United States Department of Agriculture. Leggett submitted as an exhibit U.S.D.A. boneless meat inspection criteria, which included a chart describing criteria for when bone fragments in meat were considered a defect in the product. The chart indicated that bone fragments less than one-and-one-half inches in their greatest dimensions were "minor" defects. Bone fragments less than three-quarters of an inch in length and less than one-quarter inch wide which are flexible or which crumble easily are considered "insignificant."

More than five minor fragments in a sample unit of thirty pounds is considered a "major" defect.

According to Leggett, meat is inspected prior to grinding. During 1983, a state meat inspector was on site at GMSC at all times to inspect, grade, and approve or reject each lot of meat prior to grinding. State supervisory personnel periodically spot-checked behind the inspectors. Inspectors from Wendy's also randomly inspected GMSC and were "very meticulous and strict" in enforcing Wendy's' own regulations. Random inspection, sometimes occurring several times a week, ensured that GMSC effectively enforced these regulations.

In addition, Leggett described the grinding process required by Wendy's regulations and used by GMSC. By this process chopped meat is forced through two plates with progressively smaller holes. A "bone collector" device on GMSC's grinding machine removes much of the bone and gristle remaining after the grinding process. The meat is not inspected after grinding, but is packed in twenty-pound bags, vacuum sealed, and placed in a cooler.


A motion for a directed verdict presents the question whether the evidence is sufficient to carry the case to the jury.

In passing on this motion, the trial Judge must consider the evidence in the light most favorable to the non-movant, and conflicts in the evidence together with inferences which may be drawn from it must be resolved in favor of the non-movant. The motion may be granted only if the evidence is insufficient to justify a verdict for the non-movant as a matter of law.

Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979).

The implied warranty of merchantability as codified under the Uniform Commercial Code, N.C.G.S. § 25-2-314 (1986), accords with prior North Carolina law. Performance Motors, Inc. v. Allen, 280 N.C. 385, 394, 186 S.E.2d 161, 166 (1972). See generally, Jeanne Owen, Note. Sales -- Warranties -- Implied in Sale of Food for Human Consumption, 32 N.C. L. Rev. 351, 354 (1954). The statute states, in pertinent part:

Unless excluded or modified, . . . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.

[T]he serving of food or drink to be consumed either on the premises or elsewhere is a sale.

N.C.G.S. § 25-2-314(1) (1986). Goods, to be merchantable, "must be at least such as . . . are fit for the ordinary purposes for which such goods are used." N.C.G.S. § 25-2-314(2), (2)(c) (1986).

To prove a breach of implied warranty of merchantability under N.C.G.S. § 25-2-314, "a plaintiff must prove, first [,] that the goods bought and sold were subject to an implied warranty of merchantability; second, that the goods did not comply with the warranty in that the goods were defective at the time of the sale; third, that his injury was due to the defective nature of the goods; and fourth, that damages were suffered as a result. The burden is upon the purchaser to establish a breach by the seller of the warranty of merchantability by showing that a defect existed at the time of the sale."

Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 301, 354 S.E.2d 495, 497 (1987) (quoting Cockerham v. Ward, 44 N.C. App. 615, 624-25, 262 S.E.2d 651, 658, disc. rev. denied, 300 N.C. 195, 269 S.E.2d 622 (1980) (citations omitted).

Wendy's admitted in its answer that it is a seller of food intended for human consumption, that it is engaged in and operates fast food restaurants, including the Hillsborough restaurant where plaintiff was allegedly injured, and that one of the products it sells is hamburgers containing meat patties made of beef products. The Court of Appeals correctly concluded these admissions establish that Wendy's is a merchant and that the foods it sells are subject to the implied warranty of merchantability.

Plaintiff's evidence, viewed in the light most favorable to him, tended to show that his broken teeth and resulting physical and financial damage were caused by biting down on a bone in a hamburger purchased from a Wendy's restaurant. Whether the bone in the hamburger caused the product to be unfit for consumption, i.e., "defective," is the keystone to resolving whether plaintiff's claims for breach of implied warranty should have survived Wendy's' motion for a directed verdict.

Wendy's, relying on this Court's decision in Adams v. Tea Co., 251 N.C. 565, 112 S.E.2d 92 (1960), contends that plaintiff's claim for breach of implied warranty must fail because the bone was "natural" to the foodstuff. In Adams the plaintiff bit down

on a piece of crystallized corn in his spoonful of cornflakes, cracking his eyetooth, and brought an action for breach of implied warranty against the retailer. This Court held that nonsuit (the precursor of a directed verdict) had been properly entered upon plaintiff's evidence, "where the substance causing the injury [was] natural to the corn flakes, and not a foreign substance, and where a consumer of the product might be expected to anticipate the presence of the substance in the food." 251 N.C. at 572, 112 S.E.2d at 95.

The Court of Appeals construed this language as establishing a two-part inquiry: "(1) whether the substance causing the injury is natural or foreign; and (2) if natural, whether 'a consumer of the product might be expected to anticipate the presence of this substance in the food.'" 100 N.C. App. at 114, 394 S.E.2d at 835 (quoting Adams v. Tea Co., 251 N.C. at 572, 112 S.E.2d at 98). See also Evart v. Suli, 211 Cal. App. 3d 605, 611 n.4, 259 Cal. Rptr. 535, 539 n.4 (1989) (reading Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (1936), as stating similar two-part test and Adams as adopting second prong).

The question is whether by this language the Adams Court meant to adopt a two-prong test for liability under which a plaintiff could prevail on either prong, or whether it was the Court's intent to adopt the rule that whenever a substance causing injury is natural to the food itself there can be no liability because every consumer should anticipate and be on guard against the presence of such a substance. For the reasons that follow, we conclude the Adams Court took the latter approach.

The Court in Adams surveyed a number of cases from other jurisdictions in which substances "natural" to the food had caused injury. The Court regarded as anomalous the rejection of the "foreign-natural" distinction in Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d 913 (1942), in which the court declined to say "as a matter of law" that a can of oysters containing a quarter-sized piece of shell "was reasonably fit for human consumption." Id. at 563, 28 A.2d at 915. The Court in Adams appeared to join what was then a majority of jurisdictions which espoused the view that a substance "natural" to the injurious food cannot be a "defect" in the food so as to cause the seller of the food to be liable.

No case has been found . . . holding that because an article has retained a portion of itself that was intended to be extracted . . . the product has thereby been rendered unwholesome

and unfit for human consumption. Only when the courts have found extraneous, foreign matter to be present have they held defendant liable for breach of warranty, in either tort or trespass.

251 N.C. at 571, 112 S.E.2d at 97 (quoting Recent Cases: Sales -- Foods -- Implied Warranties, 17 Temple U.L.Q. 203, 204 (1942-43)).

In Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (1936), quoted copiously and relied upon in Adams, the California Supreme Court observed the statutory requisite that food be "reasonably" fit for its purpose and opined,

in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption.

Id. at 681, 59 P.2d at 147-48, quoted in Adams v. Tea Co., 251 N.C. at 567-68, 112 S.E.2d at 96 (emphasis added).

In Adams the Court noted that, at the time, no court except the Pennsylvania Court in Bonenberger had extended liability based on implied warranty to a restaurateur when the substance causing injury was natural to the food served. According to the Adams Court's research, in all other existing cases in which the food was found not to be reasonably fit for human consumption, it was by reason of contamination by a foreign substance or the food's own noxious condition. In contrast, "bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to be on his guard and anticipate against such bones." Adams v. Tea Co., 251 N.C. at 568, 112 S.E.2d at 95 (quoting Mix v. Ingersoll Candy Co., 6 Cal. 2d at 682, 59 P.2d at 148).

The Court in Adams restated numerous holdings in which courts exercising the "foreign-natural" test articulated in Mix held "natural" defects in foods do not violate the restaurateur's implied warranty. In virtually every case*fn2 approval of the "foreign-natural"

test coincided with the courts' recognition of consumer expectations as the foundation of the test. In other words, if a substance causing injury was "natural" to the food being served, the consumer ought reasonably to anticipate its presence and could not hold the server liable for any damages it caused. The court in Shapiro v. Hotel Statler Corp., 132 F. Supp. 891, 893 (S.D. Cal. 1955), quoted the holding by the California Supreme Court in Mix that "bones which are natural to type of fish served are not a 'foreign substance,' and a customer who eats such food ought to anticipate and guard against the presence of such bones." Adams v. Tea Co., 251 N.C. at 569, 112 S.E.2d at 96 (emphasis added). "One who eats pork chops, or the favorite dish of spareribs and sauerkraut, or the type of meat that bones are natural to, ought to anticipate and be on his guard against the presence of bone, which he knows will be there." Brown v. Nebiker, 229 Iowa 1223, 1234, 296 N.W. 366, 371 (1941), quoted in Adams v. Tea Co., 251 N.C. at 570, 112 S.E.2d at 96 (emphasis added). The Court approved the holding in a negligence case, Lamb v. Hill, 112 Cal. App. 2d 41, 245 P.2d 316 (1952), that "customer was not entitled to expect an entirely boneless chicken pie in every instance." Adams v. Tea Co., 251 N.C. at 569, 112 S.E.2d at 95 (emphasis added).

Thus Adams, which said there was to be no liability in implied warranty whenever the injurious substance was natural to the food because the consumer should reasonably expect such substances to be present, came to be regarded as a case exemplifying the "foreign-natural" distinction in implied warranty actions. See, e.g., Jane M. Draper, Annotation, Liability for Injury or Death Allegedly Caused by Food Product Containing Object Related to, but not Intended to be Present in Product, 2 A.L.R. 5th 189, 208 (1992); Hochberg v. O'Donnell's Restaurant, 272 A.2d 846, 848 n.3 (D.C. 1971); Zabner v. Howard Johnson's, Inc., 201 So. 2d 824, 826 (Fla. 1967); Musso v. Picadilly Cafeterias, Inc., 178 So. 2d 421, writ. denied, 248 La. 468, 179 So. 2d 641 (1965); Williams v. Braum Ice Cream Stores, Inc., 534 P.2d 700, 701 (Okla. 1974); Finocchiaro v. Ward Baking Co., 104 R.I. 5, 12 n.3, 241 A.2d 619, 623 n.3 (1968); Betehia v. Cape Cod Corp., 101 Wis. 2d 323, 328, 103 N.W.2d 64, 67 (1960). Adams thus articulates one branch of a dichotomy

among jurisdictions as to whether a substance "natural" to a product may be a "defect" in the product: Some courts hold simply that any non-foreign substance -- such as shell in oyster stew or a pit in a cherry pie -- will not support a claim for breach of implied warranty of merchantability because the possible presence of the substance should have been anticipated in every instance by the consumer; other courts hold that whether such a substance is a "defect" depends upon the "reasonable expectations" of the consumer. See generally Donald A. Anderson, 3 Anderson on the Uniform Commercial Code §§ 2-314:184, 2-314:185 (1983).

In an earlier case the Court of Appeals seemed reluctant to read Adams (as we now read it) to preclude recovery whenever the substance causing injury is natural to the food being consumed. Coffer v. Standard Brands, 30 N.C. App. 134, 266 S.E.2d 534 (1976). In Coffer a breach of implied warranty claim was brought by a plaintiff whose tooth allegedly broke on a piece of filbert shell in a jar of mixed nuts. The Court of Appeals cited Adams as supporting the doctrine "well recognized in this and other jurisdictions passing on the question that the presence of natural impurities is no basis for liability," id. at 141, 226 S.E.2d at 538, and held that "since the impurity complained of in this case was a natural incident of the goods in question, . . . there was no breach of the implied warranty of merchantability." 30 N.C. App. at 142, 266 S.E.2d at 539. Nevertheless, the court buttressed this Conclusion with reasoning that seems by implication to be grounded in part on the "reasonable expectation" doctrine. The court found the food's compliance with federal and state food quality standards "highly persuasive in establishing merchantability under G.S. 25-2-314(2)(a)," 30 N.C. App. at 140, 226 S.E.2d at 538. The court also noted that figures for the incidence of peanut shells in units of shelled peanuts indicated that "there is some tolerance in the trade for unshelled filberts, as well." Id. In addition, the court found "instructive" N.C.G.S. § 106-129, under which food is not deemed "adulterated" if "any poisonous or deleterious substance . . . is not an added substance . . . [provided] the quantity of such substance . . . does not ordinarily render it injurious to health." Id. at 140-141, 226 S.E.2d at 538 (quoting N.C.G.S. § 106-129 (1988) (emphasis added). The court's reliance on this statute suggests the court's belief that recovery for injury caused by a substance natural to the food may depend in part upon the quantity, or size, of the substance.

In the case before us the Court of Appeals read Adams as permitting recovery on implied warranty for an injury-causing substance natural to the food if presence of the substance was nevertheless not reasonably to be anticipated by the consumer.

While we disagree with this reading of Adams by the Court of Appeals, we think it is time to reexamine the Adams holding. We conclude that Adams should no longer be considered authoritative insofar as it holds there can never be recovery on the basis of implied warranty for injury caused by a substance in food that is natural to food. We think the modern and better view is that there may be recovery, notwithstanding the injury-causing substance's naturalness to the food, if because of the way in which the food was processed or the nature, size or quantity of the substance, or both, a consumer should not reasonably have anticipated the substance's presence. This, essentially, is the test adopted below by the Court of Appeals.

"Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served." Betehia v. Cape Cod Corp., 101 Wis. 2d 323, 328, 103 N.W.2d 64, 67. See also Zabner v. Howard Johnson's, Inc., 201 So. 2d 824, 826.

It is not the fact that a defect is a natural one which is important to this inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would normally take his own precautions. A package of ground meat is not expected to be consumed from the sealed package as a bottle of soda water or milk, but is expected to be processed or otherwise altered before consumption by the purchaser.

Loyacano v. Continental Insurance Co., 283 So. 2d 302, 305 (La. App. 1973), quoted in Matthews v. Campbell Soup Co., 380 F. Supp. 1061, 1065 (S.D. Tex. 1974). "Surely it is within the expectation of the consumer to find a bone in a T-bone steak; but just as certainly it is reasonable for a consumer not to expect to find a bone in a package of hamburger meat." Morrison's Cafeteria v. Haddox, 431 So. 2d 975, 978 (Ala. 1983).

We thus hold that when a substance in food causes injury to a consumer of the food, it is not a bar to recovery against the seller that the substance was "natural" to the food, provided

the substance is of such a size, quality or quantity, or the food has been so processed, or both, that the substance's presence should not reasonably ...

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