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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-
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-
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
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
The plaintiff did not refute the defendant’s evidence of the accepted standard of coffee
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Key Terms
Class action A lawsuit brought by a group of per-
Foreign/natural substance A test which holds that
Merchantable food Food, to be merchantable, must
you ill when you eat it. To pass muster, food does not
have to be nutritional or taste great; it merely must
Privity of contract A contractual relationship that
Uniform Commercial Code A set of rules designed
H. Answers to End-of-Chapter Questions
❊Review Questions
1. What states have adopted the UCC?
2. What does the warranty of merchantability guarantee?
122 ■Chapter 11
11-5-1. What is the significance of the fact that the plaintiff had a known food allergy to some
shellfish?
The significance is that if the plaintiff had a known food allergy to some shellfish he shouldn’t
11-5-2. What is the significance of the fact that no one else in the plaintiff’s dinner party be-
came ill?
If a diner becomes ill from food, but the cause is inherent in the food, poses no threat to most
11-6-1. What evidence was critical to the court’s determination that plaintiff suffered food
poisoning caused by chicken eaten at Church’s?
The critical evidence that determined that the plaintiff had suffered food poisoning was the
plaintiff’s physician’s report that food poisoning had caused the severe abdominal pain and
11-7-1. Do you agree with the decision? Why or why not?
11-7-2. Would the outcome have been different if Thompson had advised Genghis Khan of her
allergy to peanuts? Why or why not?
The outcome for Ms. Thompson might have been different had she advised the restaurant of
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Liability and the Sale of Food ■123
3. What is the difference between the foreign/natural test and the reasonable expectation test?
The foreign/natural test provides that, if an object found in food is natural to that food, the
4. What disease can be contracted by eating uncooked pork?
5. What does “privity of contract” mean? How does it impact a lawsuit involving the
warranty of merchantability?
Privity of contract refers to the contractual relationship between two people who have entered
a contract together. Under common law, privity of contract was required to bring an action
6. What is strict products liability?
Strict products liability is a tort cause of action requiring the plaintiff to prove the following:
7. What is meant by “truth-in-menu”?
8. What impact does the 1990 Nutrition Education and Labeling Act have on restaurants?
The labeling requirements of the Act are not binding on restaurants. However, if a restaurant uses
9. What is kosher food?
10. Why do some states limit smoking in restaurants?
11. What is secondhand smoke?
Secondhand smoke consists of exhaled smoke from smokers and from smoldering cigarettes,
12. What safety precautions are necessary to avoid injuries occurring to employees in a
restaurant kitchen?
Kitchen areas are inherently dangerous. Most of the equipment can cause serious injuries if
Employees should be well-trained in the use of dangerous appliances and utensils, proce-
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124 ■Chapter 11
13. Under what circumstances is a restaurant liable when one patron injures another?
The duty to protect patrons is breached and liability results where a patron is disruptive and
If a patron is injured at a bar by a fight with another customer and the restaurant could
A restaurant or bar may be liable to a patron for injuries caused by another customer where
If the restaurant is known to be the site of assaults, robberies, or similar incidents in the
❊Discussion Questions
1. If you are the manager of a restaurant, would you prefer that the foreign/natural test
or reasonable expectation test apply? Why?
The student should prefer that the foreign/natural test apply because, with this test, more
2. Do you agree with the decision in Webster v. Blue Ship Tea Room, Inc. involving the bone
in the fish chowder? Why or why not?
The student might agree with the decision because fish chowder has historically contained
3. Dan ate breakfast at a restaurant known as Pam’s Breakfast Shop. He later became ill.
Are these facts sufficient to establish that Pam’s Breakfast Shop sold unwholesome
food? Why or why not? If not, what more is needed?
No, these facts are not sufficient. Without more, Dan cannot prove that the cause of his ill-
4. Must a plaintiff suing for breach of the warranty of merchantability show that the
defendant was negligent? Why or why not?
No, a plaintiff in a breach of warranty action need not establish that the defendant was negligent.
5. What differentiates strict products liability from the warranty of merchantability?
Warranty liability stems from the contract between the buyer (or a protected third party under
Strict products liability does not require that the plaintiff and defendant be in privity of
contract. The plaintiff, in a strict products liability case, does not have to prove that the
6. What steps should a restaurant manager take to ensure that the menu contains no inac-
curate statements?
The manager should ensure that all claims made about food offered at a restaurant are accu-
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Liability and the Sale of Food ■125
7. Under what circumstances should a restaurateur foresee injuries to a patron?
Injury is foreseeable where a customer is rowdy, displays inappropriate conduct, or bothers
others.
❊Application Questions
1. Mandy, manager of a cafeteria at a large corporation, purchased a new freezer for the
kitchen. It operates at a temperature a few degrees above the designated setting. Is the
freezer merchantable? Why or why not?
Under these circumstances the freezer is merchantable. The warranty does not require that
the good be of the highest quality, only that it be of average quality and fit for its ordinary
2. A hotel chain and a well-known hamburger fast-food chain are negotiating a contract
that would authorize the hotel to use the fast-food chain’s name on the hotel’s room-
service menu to promote the sale of hamburgers. What terms will the hamburger com-
pany want to include in the contract? Why? What terms will the hotel want included?
Why?
The fast-food chain should want the right to review the hotel’s room service menu and ap-
prove the descriptive references to the chain. If the chain’s trademark includes a distinctive
script for the name, the chain may want to require that the menu include the distinctive
script. The chain may want to reserve the right to periodically change the prices quoted on
3. Jim owns a bar in an upscale part of town. It is patronized primarily by business peo-
ple who stop in for a few drinks after work. No fights or disruptions have ever occurred
and no patron has ever been unruly. One night a man started threatening other cus-
tomers. Jim immediately approached the man and told him to leave. While Jim was es-
corting him to the door, the man punched another customer who suffered a broken
nose. The patron sued Jim’s bar for his injuries. Is the bar liable under these circum-
stances?
No, the bar is not liable. It acted reasonably. As soon as the patron was identified as a menace,
4. Look at a menu. Identify all the words whose meanings might be disputed by a diner
who ordered the item and was disappointed.
Some of the words should be items that are advertised with a nutrient or health claim such as
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5. An outdoor patio at a restaurant was the site of a post-football game party for the local
high school. Anticipating many hungry fans, large quantities of picnic food (hot dogs,
hamburgers, macaroni salad) were prepared and, at the appointed time, displayed
buffet-style. Unfortunately, rain began in the middle of the game. As a result, many
spectators left the game and so the crowd for the post-game party was much smaller
than anticipated. Much of the buffet food was not eaten. The restaurant owner wants
to donate the leftovers to a shelter for homeless people. What legal issues should the
restaurant consider before making the donation?
Legal issues to be considered are breach of warranty of merchantability, strict products liabil-
ity, and negligence.
Good managers will verify the condition of the food before it is donated to employees or
people in need.
126 ■Chapter 11
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