Foreign object in food sample

[kthumphrey]

Whilst visiting my local foodstore here in Florida, I was given a food sample from an instore demonstrator. I found myself choking and managed to dislodge the obstruction after what seemed like ages. To my horror I found a three inch plastic food tie with a metal strip in the middle. I was absolutely furious and filed a complaint at the customer service desk. The store took some details and tried to usher me out the store! I was in a state and came straight home. I later telephoned and filed my complaint with the customer relations section of the store, as well as notifying a consumer complaints agency. I was finally contacted by a member of staff from the store's risk management team. What a shock? This person was unpleasant and unhelpful and not in the least sympathetic to my situation. I finally threatened with legal action and was told they would investigate the matter and come back to me. After 3 weeks I then received a phone call and was told the instore demonstrator was not a member of their staff and was advised that someone from the other company would contact me in the next few days. Finally 5 weeks later I phoned the other company and was told that the information had been passed to their insurers and they would get an up date and get back to me. Within 20 minutes the Insurer contacted me, listened to my story again and then said they had investigated the matter and could find no solution as to where the object had came from.(I still have the offending article in my possession). I was offered compensation of $350 for my inconvenience( only when I confirmed that I had not reserved an attorney to deal with the matter). I felt that was an insufficient amount and told the insurance company representative my thoughts. He then said he would increase this amount to $500 provided I sign a waiver.
Can anyone tells me exactly what that means and give me advice as to what action I should take??
I should add that apart from the trauma and discomfort at the time my only other complaint was a sore throat the day after the event with all the racking in order to dislodge the item.

I am grateful it was me this happened to and not some child or frail older member of the public.

Thanks for any advices on the matter...I have been given 48 hours to make my decision.

 

[I AM ALWAYS LIABLE]

My response:

You have a good case, worth more than $500.00., in my opinion.

Contaminated food--consumer expectation test: Providers of contaminated ("adulterated") food may be liable on product liability and breach of warranty theories if the injury-causing substance is foreign to the food (e.g., bits of glass or wire). In such event, the trier of fact must determine whether the foreign substance (a) could be reasonably expected by the average consumer and (b) rendered the food defective or "unfit" for human consumption. [Mexicali Rose v. Super.Ct. (Clark) (1992) 1 Cal.4th 617, 631, 633, 4 Cal.Rptr.2d 145, 154, 156]

No product defect from "natural" substances: A substance that is natural to the preparation of a food item is by its very nature reasonably expected and, as a matter of law, cannot render the food unfit or defective. Plaintiffs in such cases thus have no strict liability or implied warranty cause of action. [Mexicali Rose v. Super.Ct. (Clark), supra, 1 Cal.4th at 630, 633, 4 Cal.Rptr.2d at 154, 156]

The term "natural" refers to bones and other substances normally associated with the food item; it "does not encompass substances such as mold or botulinus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served." [See Mexicali Rose v. Super.Ct. (Clark), supra, 1 Cal.4th at 630, 4 Cal.Rptr.2d at 154, fn. 5 (emphasis in original)--chicken bone is "natural" to preparation of chicken enchilada and thus not actionable on strict product liability theory; Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1202, 33 Cal.Rptr.2d 899, 902-903--tiny bone fragment in ground meat is natural substance and cannot support strict liability claim].

Compare--negligence liability: By the same token, a consumer's expectations do not negate defendant's duty to exercise reasonable care in preparing and serving food. Thus, if the presence of an injury-producing natural substance is due to defendant's failure to exercise due care, plaintiff may state a negligence cause of action. [Mexicali Rose v. Super.Ct. (Clark), supra, 1 Cal.4th at 630-631, 633-634, 4 Cal.Rptr.2d at 154, 156-157 (overruling Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 59 P.2d 144, to extent it bars negligence liability for injury caused by substance natural to preparation of food product)]

Res ipsa loquitur available: A plaintiff who can prove the essential elements of res ipsa loquitur (injury-producing instrumentality was in defendant's exclusive control and injury would not have occurred had due care been exercised, may be able to shift the burden of proof to defendant in an adulterated food case. [See Ford v. Miller Meat Co., supra, 28 Cal.App.4th at 1202-1203, 33 Cal.Rptr.2d at 903 (but res ipsa inapplicable because P failed to prove 1/8th inch bone fragment in ground beef could reasonably have been eliminated with due care)]

IAAL

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[lars coltrane]

I agree that you have a good case, but I think that you should take the offer. Your description fits a day or 2 of discomfort with a full and complete recovery. Take the money and move on. Thank goodness you don't have a bad injury.

 

[kthumphrey]

Thank you both for your reply.

Although I probably will accept the offer and count my blessings, I would like to read more on the case referred to in my first reply by IAAL. Can I read this in my local library or online anywhere?

I am also interested in the fact that this was a free sample of food, would that have changed anything as opposed to had I bought and paid for the food?

My main grievance was really the Company's attitude with my complaint. Otherwise I may not have persued the issue. These big organizations should take courses on customer satisfaction, highlighting tact and diplomacy. They may save themselves money and time with lawsuits that way!!!!

Thanks again!

 

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