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CHAPTER 11
Liability and the Sale of Food
CONTENTS
A. Chapter Competencies
B. Introduction
C. Adulterated Food
D. False Food Claims
E. Smoking Restrictions
F. Safety Concerns Particular to
Food Preparation
G. Answers to Case Example
Questions
H. Answers to End-of-Chapter
Questions
Chapter Summary
Students learn in Chapter 11 that various legal principles protect patrons of restaurants against dangers from
adulterated and mislabeled food. These principles include the implied warranty of merchantability, strict prod-
ucts liability, and negligence.
Claims made about food, including health or nutritional benefits, methods of preparation, and other
attributes, must be accurate and comply with any statutory definitions.
Food preparation and service present particular safety issues that should be addressed. These include proper
use of equipment, safeguards related to service of hot beverages, adequate training on the preparation and serv-
ice of flambé dishes, and precautions to avoid dropped food.
A. Chapter Competencies
After studying Chapter 11, students should be able to
1. identify the frequency of meals eaten away from home.
2. state circumstances in which liability is imposed by law to encourage safe practices by restaurants
and food service operations.
3. explain the duty of a restaurant to provide reasonably safe premises for its patrons.
4. identify the three possible grounds on which a diner who is served food that causes illness can sue.
5. explain the purpose and function of the Uniform Commercial Code (UCC).
6. define the term “merchantable.”
7. explain the concept of the warranty of merchantability.
8. explain the requirements for merchantable food.
9. explain the foreign/natural substance test.
10. state the purpose of the reasonable expectation test.
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Liability and the Sale of Food ■115
11. state the basis for the reasonable expectation test.
12. explain as to why the outcome of the application of the reasonable test is not always clear.
13. explain the trend toward the reasonable expectation test by courts.
14. identify grounds, other than foreign or unexpected objects in food, that are the basis for liability
for sale of food.
15. define “class action.”
16. explain the reasoning behind participation in a class action suit by potential plaintiffs.
17. identify the precautions a restaurant should take to avoid liability stemming from events involving
hot beverages.
18. discuss the proof problems faced by the plaintiff in establishing causation in a breach of warranty
action.
19. define “privity of contract.”
20. identify the rules concerning privity contained in the UCC.
21. describe the concept of strict products liability.
22. identify the three elements the plaintiff must prove to sue in strict products liability.
23. distinguish between the strict products liability and warranty of merchantability.
24. identify the three bases on which a diner who is served defective food can sue.
25. explain the circumstances in which a restaurant may be liable for a customer’s allergic reaction.
26. explain the food code of the Food and Drug Administration (FDA).
27. explain the function of the Hazard Analysis Critical Control Point system (HACCP).
28. explain the advantages of adopting and complying with the HACCP system.
29. explain the applications of the truth-in-menu laws, giving examples.
30. identify the information specified for mandatory nutritional labels on packaged foods by the
Nutrition Labeling and Education Act of 1990.
31. discuss the application of the Nutrition Labeling and Education Act of 1990 to restaurants.
32. define “kosher food.”
33. discuss the circumstances in which hotels and fast-food operations that have a business relationship
can each be liable for serving defective food.
34. discuss why restaurants restrict or ban smoking.
35. identify the safety precautions necessary to avoid injuries occurring to employees in a restaurant
kitchen.
36. identify the circumstances under which a restaurant is liable when one patron injures another.
B. Introduction
❊Studies suggest that one out of every three meals is eaten away from home. If restaurants serve
unhealthy food, a serious health risk will result.
❊To encourage safe practices, the law imposes liability on restaurants that serve inedible food and
requires that claims made about the food be truthful.
❊If a disturbance or attack is foreseeable, as where a belligerent patron remains on the premises or prior
security incidents have occurred, the owner must take action to protect the customers from harm.
C. Adulterated Food
❊A diner who is served food that causes illness has three possible grounds on which to sue: breach
of warranty of merchantability, strict products liability, and negligence.
❊Warranty of merchantability.
■Virtually all states and the District of Columbia have adopted the UCC. A restaurant qualifies as
a merchant for purposes of the warranty.
■This warranty of merchantability is implied in all contracts for the sale of goods made by a mer-
chant; it exists even if the parties never mention it in their negotiations. The warranty makes
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116 ■Chapter 11
manufacturers and sellers of food virtual insurers that the food is edible and free from danger-
ous substances. The basis for imposing this liability is a public policy for protection of consumers.
❊Merchantable food.
■Food must be fit for human consumption; that is, it must not make you ill when you eat it.
❊Objects in food.
■A pizza served with a tack in it is not merchantable. The restaurant that served the pizza will be
liable to a customer injured by the tack based on breach of the warranty of merchantability.
■Foreign/natural test.
•In some states, whether an object found in food constitutes a breach of warranty is determined
by the foreign/natural substance test. If the object is foreign the warranty is breached. If, how-
ever, the object is natural, the warranty is not breached.
■Reasonable expectation test.
•An alternate test applied by an increasing number of states is the reasonable expectation
test. If the object should be expected, its presence in the food does not constitute a breach
of the warranty. If, however, its presence is not reasonably anticipated, it does constitute a
breach.
•Under this test, more circumstances are likely to constitute breach of the warranty than under
the foreign/natural test because some objects may be natural but are nonetheless unexpected;
examples include a chicken bone in chicken pot pie and nutshell pieces in nut bread. Other
examples are a pit in a maraschino cherry used as a dinner garnish, a piece of bone in a barbe-
cue pork sandwich, and a date pit contained in a date muffin.
•The outcome of the application of the reasonable expectation test is not always clear because
reasonable people might disagree about what should be reasonably anticipated.
❊Trend toward the reasonable expectation test.
■In judging the merchantability of food, courts recently have been favoring the reasonable ex-
pectation rule over a strict application of the foreign/natural test.
■The reason for this is, at least in part, because even the presence of natural substances can some-
times render food unfit.
■The reasoning applied in the foreign/natural test is fallacious because it assumes that all sub-
stances that are natural to the food in one stage or another of preparation are, in fact, anticipated
by the average consumer in the final product served.
■Categorizing a substance as foreign or natural is not, in fact, determinative of what is unfit or
harmful for human consumption.
■Sometimes an object is not natural to a product but nonetheless is associated with that product.
A court may determine that such objects should be reasonably expected by the diner.
❊Other grounds for breach of warranty of merchantability.
■Foreign or unexpected objects in food are not the only basis for liability based on the sale of food.
■If the food is unfit, regardless of the cause, the warranty of merchantability is breached.
❊Class actions.
■A restaurant’s failure to properly handle or prepare food could result in not just one customer
becoming ill, but many.
■If numerous people are made sick from the same unhealthy food, they may be able to ease the
expense of the lawsuit by bringing a class action.
■Due to the decreased expense and relative ease of participating in a class action suit, potential
plaintiffs who might not otherwise sue will assert their claim, thereby expanding the liability ex-
posure of the defendant.
❊Hot beverages.
■Food establishments need to exercise caution when serving hot beverages.
■To avoid liability in this type of case, a restaurant should take several precautions.
❊Food-borne illnesses.
■Restaurants must take precautions to protect against spreading food-borne illnesses.
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Liability and the Sale of Food ■117
■Proper handling will usually eliminate the risks.
■Proper sanitation and cooking will greatly reduce the risk of salmonella infection.
■E. coli, another bacterium, is a risk in many foods, especially uncooked or undercooked beef.
■Trichinosis is an illness caused by eating raw or undercooked pork and wild game products
infected with the larvae of a species of worm called trichinella.
■Infection from pork was once quite common, but is now relatively rare due to strict legislation
prohibiting the feeding of raw meat garbage to hogs, as well as public awareness of the danger
of eating raw or undercooked pork. Today, cases of trichinosis are more commonly associated
with raw or undercooked game meats. Proper cooking eliminates the risk.
■Restaurants should ensure that their chefs and kitchen staff have adequate training in food safety
and that foods are properly prepared to protect diners’ well-being.
❊Proof problems establishing causation.
■If a person eats in a restaurant or buys take-out food and later becomes ill, is that sufficient proof
that the food from the restaurant caused the illness? The answer, of course, is no.
■A plaintiff in a breach of warranty action must prove that the food purchased at the defendant’s
establishment was unwholesome and caused the illness or injury, or prove that the food was unfit
for human consumption.
❊Privity of contract.
■Under common law, a direct contractual relationship was required between the plaintiff and the
defendant in a breach of warranty action.
■The relationship between parties to a contract is called privity of contract.
■All states have relaxed the requirement of privity to some extent.
■The most restrictive option limits the benefits of the warranty to the buyer, the buyer’s family,
and the buyer’s household guests. The broadest alternative covers any person who may reason-
ably be expected to consume the food.
❊Strict products liability.
■To bypass the privity requirement, most states have adopted strict products liability that is based
in tort law rather than contracts. Privity is not required.
■To sue in strict products liability, a plaintiff must prove only three elements.
■While strict products liability may seem a lot like a breach of warranty of merchantability, it elim-
inates the requirement of privity and enhances a plaintiff’s chances of success in a lawsuit based
on defective food.
■If a diner becomes ill from food, but the cause is inherent in the food, poses no threat to most
people, and the restaurant took precautionary measures to protect diners from the illness, the
food will not be considered defective.
❊Negligence.
■An additional basis for suing a restaurant that serves unhealthy food is negligence. In these cases
an injured diner claims that the restaurant was careless while preparing the food and that in-
attentiveness led to the meal being tainted.
❊Choice of action.
■A diner who is served defective food may have three bases on which to sue: breach of warranty,
strict products liability, and negligence. How does the plaintiff determine on which basis to sue?
❊Customers with allergies.
■Restaurant patrons frequently request that certain ingredients be eliminated from their food.
These requests are often prompted by allergies.
■When a patron rejects food due to allergies, wise policy mandates that substitute food be served
and that it be presented on a clean dish. If only the offending ingredient is removed and the bal-
ance of the food is returned to the customer on the same plate, the residue, although small in
amount, may be sufficient to cause an allergic reaction.
■Hazard Analysis Critical Control Point system.
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•The Food and Drug Administration (FDA) is a federal agency that oversees the food industry. Its
objectives include promoting public health by ensuring foods are safe, wholesome, sanitary, and
properly labeled. Among the FDA’s undertakings is a Food Code, which is a set of model ordi-
nances that provide guidance on standards and practices for the achievement of food safety in
restaurants and other segments of the food industry—a quality assurance scheme to identify and
minimize spoilage and contamination problems during food manufacturing and service.
•Such a system requires food producers and servers to systematically look at hazards that can
cause spoilage or contamination and identify how to avoid them.
•Among the control methods utilized are cooking, refrigeration, packaging, monitoring, and
employee hand-washing.
•The implementation of a Hazard Analysis Critical Control Point system (HACCP) quality
control system is recognized as an essential element of managing the operations of a food-
service facility. Adopting and complying with such a system helps prevent and mitigate legal
liability for defective food.
■Hand-washing by food preparers.
•Employee hand-washing is a critical control point (CCP) in food safety and prevention plans.
•If food handlers (cooks and wait personnel) come to work when they are not well, their illness
may be transferred to customers.
•If an infected employee is discovered, officials will likely become involved and a public
announcement will be made to encourage at-risk patrons to seek treatment. In addition
to harm caused a customer, the negative publicity to the eatery can seriously hurt its
business.
•To safeguard against this, management should ensure that employees are knowledgeable
about proper hand-washing procedures and compliant with them. Signs in bathrooms should
remind employees to cleanse their hands properly after using the facilities.
D. False Food Claims
❊Restaurants often make various claims about the food they sell.
❊Truth-in-menu laws.
■Both federal and state laws require accuracy in representations made by restaurants about the
food they serve.
■Federal laws regulating menu descriptions apply only to items that are advertised with a nutri-
ent or health claim such as “low fat” or “heart healthy.”
■Despite these limited federal regulations, many restaurants strive for accurate menu descriptions
out of concern for state laws, quality assurance, and consumer confidence. Most states have laws
seeking to eliminate misleading food advertisements and labels.
■Controversies can result from omitting ingredients, mistaking a product’s origin, misdescribing
a dish, or inaccurately identifying the cooking method.
■Sometimes when the name of a food product references a geographical place, that location does
not denote place of origin and can be used regardless of where the food was made.
■Fish or other products that have been frozen cannot be sold as “fresh.”
■Inaccurate cooking methods stated on a menu should be corrected.
■A growing number of people are vegetarians. Fast-food chains have attempted to attract these
diners by providing vegetarian offerings. What constitutes “vegetarian” has been the subject of
some dispute.
■To comply with the law and avoid customer displeasure, restaurants must pay close attention to
accuracy in product descriptions.
❊Food labeling.
■As the public has become more concerned about health issues, including cholesterol and satu-
rated fat intake, health claims have become a significant factor in consumers’ choice of food
products.
■Food producers have tried to capitalize on customers’ interests in healthy foods.
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■The FDA has promulgated regulations to enforce the Nutrition Labeling and Education Act of
1990.
■Application to packaged foods.
•Mandatory nutritional labels are required for all packaged goods. They must contain the
information that enumerates what the Act requires.
•The Act enforces standardization of serving sizes since information such as fat grams and calo-
ries are based on serving sizes. Before the effective date of the Act, food purveyors used vary-
ing serving sizes, making comparison shopping difficult. Companies often used an artificially
small serving size, making the nutritional information such as calories and fat grams look
unjustifiably appealing.
•The Act enforces regulation and standardization of words such as “light,” “cholesterol-free,”
and “low calorie.”
•The Act enforces mandatory labeling of fat content by weight, specifying both total fat and
saturated fat.
•The Act enforces mandatory labeling of fiber content by weight.
•The Act enforces mandatory labeling of the content of the following as percentages of the
United States Recommended Daily Allowance (RDA): total fat, saturated fat, cholesterol,
sodium, carbohydrates, and fiber.
•The Act enforces limitations on health claims. The statute specifies the permissible representation
between foods and disease avoidance. It only permits claims that the food “may” or “might”
reduce the risk of disease and precludes statements that suggest a guaranteed reduction of risk.
■Application to restaurants.
•Whenever a restaurant makes a claim about the nutritional content (for example, “low
sodium” or “light”) or the healthfulness of a food product (for example, “fiber helps to pre-
vent cancer”), the restaurant is required to provide to patrons upon their request the infor-
mation required to be on a label of packaged food.
•As initially adopted, these regulations did not apply to health and nutritional content
claims made on menus, but rather only those made on signs, placards, or posters in the
restaurant. The menu exclusion was challenged in court by a public-interest consumer
group.
•However, the information is still not required to be included on the menu. Instead, the
information need only be available “upon request.”
•How do restaurants determine the nutritional content of their food?
•If a restaurant promotes a menu item as “light,” that item must meet the standard for that
term as developed by the FDA.
■Kosher foods.
•Kosher food is a designation referring to food prepared consistent with Jewish religious
requirements.
•Without the rabbi’s verification that the food has been properly prepared to merit the desig-
nation of kosher, it cannot be advertised as such.
•When food is labeled as kosher, the label suggests the food has been prepared in accordance
with the requirements. People who “keep kosher” (that is, eat only food that is kosher) have
a right to expect that a restaurant advertising kosher food will serve food prepared as required
by applicable rules.
•Many states treat promoting nonkosher food as kosher as a criminal offense, and subject
wrongdoers to potential jail terms and fines.
■Relationships between fast-food operations and hotels.
•An expanded relationship has been developing between fast-food restaurants and hotels.
•In case of violations, who would be liable? The hotel? The fast-food company? Both? The
answer is that the hotel will most likely be the only one liable, because the hotel is
not an agent of the food company nor are the employees of the hotel employees of the
restaurant.
Liability and the Sale of Food ■119
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120 ■Chapter 11
•In two circumstances, however, the food company might also be liable.
•The economy hotels are a fast-growing segment of the lodging industry, but few have restau-
rants. They often encourage family restaurant chains to open an outlet near their facilities.
•In these situations, the hotel and restaurant are two separate, unconnected businesses and, as
long as they remain so, neither will be liable for the negligence or breach of warranty of the other.
E. Smoking Restrictions
❊Many states and localities have adopted laws that restrict or prohibit smoking in many public build-
ings, including restaurants.
❊Laws prohibiting smoking are based on findings that breathing secondhand smoke is a significant
health hazard for nonsmokers as well as smokers.
❊The danger of secondhand smoke applies to customers and even more so to service employees at
bars and restaurants.
❊Some prohibit smoking in the restaurant area, but permit it in an accessory bar. Some laws pro-
hibit drifting of smoke from a designated smoking area into a nonsmoking area. Some restau-
rants, upon being cited for violating a smoking regulation, have challenged their validity on
constitutional grounds. Generally these statutes have been upheld as appropriate means to pro-
tect public health.
❊The cases pursued based on the Americans with Disabilities Act have been decided on a case-by-case
basis and their outcome depends on the impact on the facility’s business of prohibiting smoking.
The greater the impact, the less likely the court will require that smoking be prohibited.
F. Safety Concerns Particular to Food Preparation
❊Some aspects of food service present particular safety risks to employees. The restaurateur has a
duty to exercise reasonable care to minimize these risks.
❊Food preparation.
■Kitchen areas are inherently dangerous. Most of the equipment can cause serious injuries if mis-
used, such as meat cutters, grills, deep-fat fryers, knives, and stoves.
■A direct relationship exists between the quality of an accident-prevention program and the fre-
quency and severity of accidents. Managers must devise policies to encourage safety in the food-
preparation process.
❊Risks associated with donated foods.
■A restaurant with unused food may be motivated to give it to a charitable organization. Food is
often donated because it is near the recommended last day of use or it is leftover from an event
for which large amounts of food were prepared. In either circumstance, the donated food may
be at risk for spoilage.
■Good managers will verify the condition of the food before it is donated to employees or peo-
ple in need.
❊Liability for injuries to patrons.
❊Duty to protect patrons.
■The duty is breached and liability results where a patron is disruptive and the restaurant fails to
quiet or eject that customer.
■Restaurants have been held liable in several circumstances for failure to control activity on their
premises.
■However, in circumstances where a fight or other security incident happens without warning and
therefore could not have been anticipated, the bar will not be responsible.
❊Failure to eject a quarrelsome patron.
■If a patron is injured at a bar by a fight with another customer and the restaurant could reason-
ably have foreseen the coming attack, liability will result. Injury is foreseeable where a customer
is rowdy, displays inappropriate conduct, or bothers others.
■If restaurant employees are unable to remove a troublemaker, the police should be summoned.
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Liability and the Sale of Food ■121
❊Sudden, unforseeable attack.
■If the restaurateur or bar owner cannot reasonably foresee injury to a patron, the owner’s
responsibility to take steps to prevent attacks is limited. If, however, circumstances suggest that
customers are at risk of being accosted, the restaurant or bar must take reasonable action to pro-
tect the patrons and prevent the attack.
❊Failure to provide adequate security.
■A restaurant or bar may be liable to a patron for injuries caused by another customer where the
tavern keeper fails to provide a staff adequate to police the premises. Liability will turn on
whether the restaurant took sufficient precautionary measures based on the foreseeability of the
incident.
■If the restaurant is known to have been the site of assaults, robberies, or similar incidents in the
past, the owner is on notice that patrons may be in danger and has a duty to protect them.
■Attention to security issues is a must to avoid liability. A restaurant’s protection plan should include
thorough training of employees on how to handle a disturbance, and frequent assessments of the
foreseeable risks and the precautionary practices needed.
❊No duty to comply with demands of a robber.
■Courts have held that a restaurateur has no duty to comply with a robber’s unlawful demands,
even though compliance might lessen the danger to other persons on the premises.
G. Answers to Case Example Questions
11-1-1. The court’s decision was based in part on its belief that people who eat fish chowder an-
ticipate and expect that it will contain occasional bones. Do you agree? Do you think
the decision would have been different if the plaintiff came from Nebraska?
People who are not familiar with fish chowder might be less apt to anticipate bones than afi-
cionados. However, the court’s decision seemed based in large part on the history and tradi-
tion of fish chowder, which provides for the inclusion of chunks of fish in the soup, and only
incidentally on the fact that the plaintiff was born and bred in New England. The inclusion of
the word “fish” in the name of the chowder suggests that fish will be present in some form in
the soup and puts people on notice thereof. In all likelihood, the decision would have been the
same even if the plaintiff were less familiar with the contents of fish chowder.
11-3-1. Why did the court in this case find sufficient the notice about dangers of raw shell-
fish?
The court found sufficient notice was given about the dangers of raw shellfish. The warn-
ing was placed directly under the entrée in question. To post additional notices around the
restaurant about the hazards of eating raw shellfish was impractical and unreasonable.
11-3-2. Why were the bacteria-infected oysters not considered adulterated?
The bacteria-infected oysters were not considered adulterated because the bacteria exists in
the oysters at all times unless fully cooked.
11-4-1. Given that the plaintiff was injured by the temperature of the coffee, why was the seller
not liable?
The fact that the coffee was hot enough to cause injury if not properly handled does not mean
that it was defective or negligently served. Where, as here, a product by its very nature has a
dangerous attribute, liability is imposed only when the product has an attribute not reason-
ably contemplated by the purchaser or is unreasonably dangerous for its intended use. Since
the plaintiff clearly intended to purchase hot coffee, the plaintiff must present evidentiary facts
establishing that the coffee served by the defendant was defective or unreasonably dangerous,
or negligently served.
The plaintiff did not refute the defendant’s evidence of the accepted standard of coffee
temperature, nor did she produce any evidence that her cup of coffee was super hot or hotter
than normal. Moreover, the record shows that the plaintiff was a frequent user of coffee. She
had purchased coffee from E-Z Serve before the incident, and has done so since.
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