Question

Webster ordered a bowl of fish chowder at the Blue Ship Tea Room. She was injured by a fish bone in the chowder, and she sued the tea room for breach of the implied warranty of merchantability. The evidence at trial showed that when chowder is made, the entire boned fish is cooked. Should she recover?

Answer 1

RULE:
The possible presence of a piece of oyster shell in or attached to an oyster is so well known to anyone who eats oysters that the court can say as a matter of law that one who eats oysters can reasonably anticipate and guard against eating such a piece of shell.

FACTS:
Plaintiff was injured when a fish bone lodged in her throat while dining at defendant's restaurant. An action to recover damages for personal injuries was sustained by reason of a breach of implied warranty related to food served in defendant's restaurant. The trial court found for plaintiff. Defendant appealed and asserted that New England fish chowder is a hearty dish, and no chef should be asked to reduce the pieces of fish to miniscule size in an effort to ascertain if they contained any pieces of bone.

ISSUE:
Was there a breach of implied warranty that plaintiff entitled to damages?

ANSWER:
No.

CONCLUSION:
The court found no breach of implied warranty because a restaurant customer such as plaintiff, eating fish chowder, should have anticipated having to remove some fish bones from her bowl. The court even reviewed the history of fish chowder and found no recipes that instructed the cook to ensure that the fish was bone-free. Therefore, the bone which injured plaintiff did not impair the fish chowder's fitness or merchantability. The court sustained defendant's exceptions and entered judgment for defendant.