Business 8th Edition by Marianne Jennings

Exercise 26

Clamming Up Because of Shell-Shock
FACTS
On April 11, 1996, Sandra Mitchell (appellant) was having dinner at Friday's restaurant (appellee). Ms. Mitchell was eating a fried clam strip when she bit into a hard substance that she believed to be a piece of a clam shell. She experienced immediate pain and later sought dental treatment. Some time later, the crown of a tooth came loose. The crown could not be reattached, and an oral surgeon removed the remaining root of the tooth.
Ms. Mitchell filed a product liability action against Friday's, which had served her the meal, and Pro Source Distributing (also appellee), the supplier of the fried clams. Both Friday's and Pro Source filed motions for summary judgment, which the trial court granted without explanation. Ms. Mitchell appealed.
JUDICIAL OPINION
WAITE, Judge
Appellant asserts that there is a reasonable expectation that clams are completely cleaned of their shells and free of foreign materials.
In the present case, Friday's set forth in its motion for summary judgment appellant's deposition testimony to the effect that while eating a clam strip, she bit down on "a hard, foreign substance." Appellant stated that she assumed it was a piece of a clam shell. Appellant described the size of the object as about a quarter of the size of a small fingernail or about a quarter of an inch or smaller and irregular in shape. Moreover, Friday's attached an affidavit from its manager, Eric Hicks, who immediately responded to appellant's report of the incident. In that affidavit, Hicks confirmed that the object appellant presented to him was indeed a piece of clam shell and that it was approximately one-quarter inch in length and irregularly shaped.
Both Friday's and Pro Source presented essentially the same argument, that regardless of whether the foreign-natural test or reasonable-expectation test was applied, appellant has no claim against appellees.
The basis of appellant's argument for application of the reasonable-expectation test is found in R.C. 2307.75, which provides that a product is defective if it is more dangerous than an ordinary consumer would reasonably suspect. However, appellant has not set forth any case law or analysis that would suggest that food products fall under the purview of the statute. We can find no case that has analyzed a food item in that context. Indeed, the weight of product liability cases deal with synthetic products, for example, a cargo door hinge, a glass bottle, or a prosthetic hip joint. Thus, we see no compelling reason to abandon any established test due to the enactment of Ohio's product liability legislation.
However, it does not appear necessary to determine which test applies to the present case. Save for reference to the product liability statute, a similar argument was addressed in Mathews v Maysville Seafoods, Inc. (1991), 76 Ohio App.3d 624, 602 N.E.2d 764. In Mathews, the plaintiff suffered a bowel injury when he swallowed a fish bone while eating a fish fillet served by the defendant.
The trial court granted the defendant's motion for summary judgment. On appeal, the defendant argued for the adoption of the reasonable-expectation test as opposed to the foreign-natural test.
The Mathews court set forth both tests. Under the foreign-natural test:
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 anticipate and be on his guard against the presence of such bones.
[Q]uoting Mix v Ingersoll Candy Co. (1936), 6 Cal.2d 674, 682, 59 P.2d 144, 148.
The reasonable-expectation test states:
The test should be what is "reasonably expected" by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.… As applied to the action for common-law negligence, the test is related to the foreseeability of harm on the part of the defendant. The defendant is not an insurer but has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against.
Mathews, 602 N.E.2d at 765.
The Mathews court looked to Allen v Grafton (1960), 164 N.E.2d 167, where the plaintiff was injured after swallowing a piece of oyster shell contained in a serving of fried oysters. The Supreme Court held:
The presence in one of a serving of six fried oysters of a piece of oyster shell approximately 3 × 2 centimeters (about 11\5 inches by 4\5 of an inch) in diameter will not justify a legal conclusion either (a) that that serving of fried oysters constituted "food" that was "adulterated" within the meaning of Section 3715.59, Revised Code, or (b) that that serving constituted food not "reasonably fit for" eating.
The Mathews court further noted:
In the instant case, it is not necessary to hold… that, because an oyster shell is natural to an oyster and thus not a substance "foreign" to an oyster, no liability can be predicated upon the sale of a fried oyster containing a piece of oyster shell. However, the fact, that something that is served with food and that will cause harm if eaten is natural to that food and so not a "foreign substance," will usually be an important factor in determining whether a consumer can reasonably anticipate and guard against it.
In our opinion, the possible presence of a piece of oyster shell in or attached to an oyster is so well known to anyone who eats oysters that we can say as a matter of law that one who eats oysters can reasonably anticipate and guard against eating such a piece of shell, especially where it is as big a piece as the one described in plaintiff's petition.
Despite the opposing interpretations of Allen, the Mathews court stated that "it is not necessary to decide whether the 'reasonable expectation' test or the 'foreignnatural' test holds sway in Ohio." The court stated that it must be reasonably expected that even a fish fillet may contain fish bones, citing Polite v Carey Hilliards Restaurants, Inc. (1985). The Mathews court noted that in Polite, the court applied the foreign-natural test in affirming a summary judgment for the defendant where the plaintiff swallowed an obviously naturally occurring one-inch fish bone concealed in a fish fillet.
An occasional piece of clam shell in a bowl of clam chowder is so well known to a consumer that we can say the consumer can reasonably anticipate and guard against it.
Courts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell.
In the present case, it cannot be disputed that the piece of clam shell that caused appellant's injury was natural to the clam strip she consumed. Turning to the question of whether appellant should have reasonably anticipated the presence of the clam shell, we are reminded of the Ohio Supreme Court's holding in Allen, supra, that "the possible presence of a piece of oyster shell in or attached to an oyster is so well known to anyone who eats oysters that we can say as a matter of law that one who eats oysters can reasonably anticipate and guard against eating such a piece of shell." The facts of the present case are virtually indistinguishable from Allen except for the type of injury and that, here, appellant was eating fried clams rather than fried oysters. We therefore hold that, as a matter of law, one who eats clams can reasonably anticipate and guard against eating a piece of shell.
As appellant's claim fails under both tests, we overrule her assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
What did the lower court do in the case that caused an admonition from the appellate court?