bus law

CASE 13-2: Williams v. Braum Ice Cream Store, Inc.

Oklahoma Court of Appeals

534 P.2d 700 (1974)

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 “foreign-natural 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