Law for Business 12th Edition by James Barnes,Terry Dworkin,Eric Richards

Exercise 4

Mitchell bought a hamburger from Wendy's. When he began to eat the hamburger, he felt something extremely hard strike his tooth, causing pain that he described as feeling like "someone had shot me in the tooth with a BB. It was painful and got more painful." He immediately stopped chewing, removed the food from his mouth and discovered bone-colored particles that had broken when he bit into them. He reported it to the restaurant manager who subsequently apologized, threw the food away, and asked him to complete a claim form. Mitchell brought an action against Wendy's seeking to recover for personal injuries he sustained when he broke his tooth eating the hamburger. Wendy's moved for summary judgment in its favor on the issues of the warranties of merchantability and fitness for a particular purpose, arguing that the defect was a substance that was "natural" to beef and also that it was not liable for any defect that was discoverable by reasonable prudence on the part of the consumer. Should the court grant summary judgment to Wendy's?