Liability and the Sale of Food
Warranty of Merchantability
  • Basic Law  ==>  we insure the fitness of the food we serve
    • 1. Imposes strict liability
      2. Claims we make are truthful
      3. Provide a reasonable safe place for our patrons
      note: courts normally impose high standards
  • Uniform Commercial Code 
    • - implied warranty that goods are at least average quality and fit for their ordinary purpose
      - food must be fit for human consumption
      - food only has to be eatable (has nothing to do with nutrition or taste)
  • Objects in Food
    • 1. Foreign/Natural Test
        - if object is natural no breach of warranty
      2. Reasonable Expectations Test
        - could the object be reasonable expected by the consumer, if so then no breach of warranty
      3. Courts are favoring reasonable expectations test over foreign/natural test
  • Other Grounds for Breach of Merchantability
    • 1. Improper handling/preparation of food
        - class action lawsuit
      2. Hot beverages
      3. Pork and Trichinosis
      4. Restaurant is the Insurer of Wholesomeness
        - a restaurant that serves food that is unwholesome is liable without proof of negligence
      5. Privity of Contract
        - relationship between parties to a contract
        - under common law need a direct contractual relationship in a breach of warranty action
      6. Strict Products Liability
      • alleviates the privity of contract problem
      • based in tort law not contract law
      • need to prove 3 elements

      •  a) defendant sold food in a defective condition
         b) plaintiff was injured
         c) injury was caused by the defect
  • 3 Bases on Which to Sue for Defective Food
    • 1. Breach of Warranty
      2. Strict Products Liability
      3. Negligence
False Food Claims
  1. Truth-in-Menu 
  2. Kosher Foods
  3. Food Labeling
Smoking Restrictions


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this page is maintained by Reed Fisher
last updated January 15, 2011