Williams v. Braum Ice Cream Store, Inc.
Oklahoma Court of Appeals
Plaintiff Williams purchased a cherry-pecan ice cream cone from the defendant's shop. While eating the ice cream, she broke her tooth on a cherry pit that was in the ice cream. She sued defendant Braum Ice Cream Stores, Inc., for breach of implied warranty of merchantability. The trial court ruled in favor of the defendant, and the plaintiff appealed

Judge Reynolds

There is a division of authority as to the test to be applied where injury is suffered from an object in food or drink sold to be consumed on or off the premises. Some courts hold there is no breach of implied warranty on the part of a restaurant if the object in the food was "natural" to the food served. These jurisdictions recognize that the vendor is held to impliedly warrant the fitness of food, or that he may be liable in negligence in failing to use ordinary care in its preparation, but deny recovery as a matter of law when the substance found in the food is natural to the ingredients of the type of food served.

This rule, labeled the "foreign-natural test" by many jurists, is predicated on the view that the practical difficulties of separation of ingredients in the course of food preparation (bones from meat or fish, seeds from fruit, and nutshell from the nut meat) is a matter of common knowledge. Under this natural theory, there may be a recovery only if the object is "foreign" to the food served. How far can the "foreign-natural test" be expanded? How many bones from meat or fish, seeds from fruit, nutshells from the nut meat or other natural indigestible substances are unacceptable under the "foreignnatural test"?

The other line of authorities hold[s] that the test to be applied is what should "reasonably be expected" by a customer in the food sold to him.

[State law] provides in pertinent part as follows:

1. . . . 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. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

2. Goods to be merchantable must be at least such as

a. are fit for the ordinary purposes for which such goods are used; . . .
In Zabner v. Howard Johnson's Inc.... the Court held:

The "foreign-natural"test as applied as a matter of law by the trial court does not recommend itself to us as being logical or desirable. The reasoning applied in this test is fallacious because it assumes that all substances which 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 may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. A nutshell natural to nut meat can cause as much harm as a foreign substance, such as a pebble, piece of wire, or glass. All are indigestible and likely to cause injury. 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.

The "reasonable expectation" test as applied to an action for breach of implied warranty is keyed to what is "reasonably"fit. If it is found that the pit of a cherry should be anticipated in cherry-pecan ice cream and guarded against by the consumer, then the ice cream was reasonably fit under the implied warranty

In some instances, objects which are "natural" to the type of food but which are generally not found in the style of the food as prepared, are held to be the equivalent of a foreign substance.

We hold that the better legal theory to be applied in such cases is the "reasonable expectation" theory, rather than the "naturalness"theory as applied by the trial court. What should be reasonably expected by the consumer is a jury question, and the question of whether plaintiff acted in a reasonable manner in eating the ice cream cone is also a fact question to be decided by the jury
Reversed and remanded in favor of Plaintiff, Williams.

CRITICAL THINKING ABOUT THE LAW

The criteria selected are important in determining the outcome of a case. Put simply, depending on the court's selection from many possible criteria, it can reach multiple conclusions. Judging a case according to criteria X, Y, and Z can yield a vastly different decision than if the same case were judged according to criteria A, B, and C.

Case 13-2 illustrates the foregoing assertion.The trial court had made a legal decision based on criterion X, namely, the "foreign-natural" test.The appeals court, however, held that the trial court must redecide the case, this time on the basis of criterion Y, or the "reasonable expectation" test.

The critical thinking questions enable you to examine carefully the key differences between the two tests, including the possible implications. The larger project of the questions is to increase your awareness of the extent to which a legal decision is dependent upon the criteria chosen to reach that decision.

1. What is the fundamental difference between the natures of the two tests discussed by the court in Case 13-2?

Clue: Reread the discussion of the two tests to formulate your answer.

2. Which of the two tests is more likely to yield ambiguous reasoning when applied?
Clue: Refer to your answer to question 1.