The standard in Florida for determining fault for injuries caused by harmful substances in food is known as the “reasonable expectation” test. Examples of harmful substances include bones, shells, and pits, not only substances completely foreign to food products such as metal, human nails, and bugs.
Obviously, claims resulting from foreign objects are easier to win than claims involving substances natural to the basic food product, but the “reasonable expectation” test nevertheless provides a basis for prevailing in the latter situation.
Not every jurisdiction within the United States follows the “reasonable expectation” test. Some jurisdictions represent the view that as a matter of law a harmful substance present in food which is natural to it cannot be common law negligence or a legal defect or breach of the implied warranty of reasonable fitness of such food. Florida has rejected this test as not being logical or desirable. Zabner v. Howard Johnson’s, Inc., 201 So.2d 824 (Fla. App. 4 Dist., 1967).
The Zabner court had this to say about the “foreign-natural” test, the name it gave to the standard described above: “The reasoning apllied 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. It does not logically follow that every product which must contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. 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.”
Put another way, whether one can expect a harmful subtance “is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken.” Zabner, 201 S02d at 826.
The following examples are from reported cases involving harmful substances in food:
- A fragment of a chicken bone in chicken pie
- Particle of a bone in a barbecued pork sandwich
- Chicken bone in chicken soup
- Small bone in fish filet
- Fish bone in chowder
- Bone in noodle soup mix
In each of these examples, the “foreign-natural” test would bar the claim. Not so under Florida’s “reasonable expectation” test. This is not to say, however, that each claimant would necessarily make a successful recovery in Florida. Rather, the “reasonable expectation” test would only give the claimants a fighting chance, rather than having the courthouse doors arbitrarily barred.
Contact us at 866-785-GALE or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.