Goodman v. Wendy's Foods, Inc. (N.C.).

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Facts.  On October 28, 1983, Fred Goodman purchased a double hamburger sandwich
with "everything" on it from a Wendy's Old Fashioned Hamburger restaurant (Wendy's).
According to Goodman's testimony, about halfway through the sandwich, he bit a hard
substance. He found a bone one and one-half inches in length, and the width of one-
quarter inch at its widest, from which it narrowed to a point. As a result of biting the
bone, Goodman broke three teeth. He incurred substantial dental expenses for root canal
surgery, temporary and permanent crowns, and tooth extraction. Goodman sued Wendy's
to recover damages for breach of the implied warranty of fitness for human consumption.
Wendy's argued that the foreign substance test applied and protected it from liability.
Goodman alleged that the consumer expectation test applied and that Wendy's was liable.
The trial court directed a verdict for Wendy's. Goodman appealed.

Issue.
Does the foreign substance test or the consumer expectation test apply to a breach of
implied warranty of fitness for human consumption case?

Opinion. Exum, Judge.  We think the modern and better view is that there may be
recovery, notwithstanding the injury-causing substance's naturalness to the food, if
because of the way in which the food was processed or the nature, size or quantity of the
substance, or both, a consumer should not reasonably have anticipated the substance's
presence. It is not the fact that a defect is a natural one which is important to this inquiry,
but the fact that the ordinary consumer would expect that he might encounter it, and thus
he would normally take his own precautions.
        Surely it is within the expectation of the consumer to find a bone in a T-bone
steak; but just as certainly it is reasonable for a consumer not to expect to find a bone in a
package of hamburger meat. A triangular, one-half-inch, inflexible bone shaving is
indubitably "inherent" in or "natural" to a cut of beef, but whether it is so "natural" to
hamburger as to put a consumer on his guard--whether it "is to be reasonably expected
by the consumer" -- is, in most cases, a question for the jury.
        We thus conclude, as did the Court of Appeals majority, that a jury could
reasonably determine the meat to be of such a nature, i.e., hamburger, and the bone in the
meat of such a size that a consumer of the meat should not reasonably have anticipated
the bone's presence. The Court of Appeals therefore properly reversed directed verdict
for Wendy's on plaintiff's implied warranty of merchantability claim.

Holding.  The state supreme court followed the recent trend and held that the consumer
expectation test applied to cases of alleged injuries caused by food products. The
supreme court reversed and remanded the case for trial using the consumer expectation
test.


Case Questions
Ethics
.  Was it ethical for the defendant to argue against liability in this case?
Policy.  Which do you think is a better test for determining warranty liability of food
sellers, the foreign substance test or the consumer expectation test? Explain.
Business Implication.  On remand, would you find Wendy's liable? If so, what amount
of damages would you award?




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