For most personal injury lawyers it does not get better than this. Your client has suffered from two years of poor health, vomiting and stomach pain. Doctors finally use an endoscope and find the culprit: a spoon bearing the clearly marked name of Wendy’s. That is what happened to John Manley of Wilmington, North Carolina.
Unlike many torts cases, the source of the item is not in doubt. The spoon has “Wendy’s” printed on one side and “Hamburgers” on the other. Liability is less obvious. Manley insists that the part of the spoon had to have been in food or drink without his knowledge. Wendy’s is likely to argue that he was an aggressive chewer and that their plastic utensils meet industry standards.
Most such cases turn on the application of the common law principle of res ipsa loquitur. Under this doctrine, a jury is allowed to assume negligence where the plaintiffs can show (1) that the injury does not ordinarily occur absent negligence, (2) the object was under the exclusive control of the defendant at the time of the accident or injury, and (3) the injury is not due to the actions of the plaintiff or some other person or cause. The problem here seems to be the third condition and how he will prove that the ingestion of the spoon was due to contamination of food as opposed to his own chewing negligence. It may be possible to look at the condition of the spoon as a forensic matter, but it is still a challenge. There is also a problem under the second condition. Technically, the spoon was in the control of Manley if it was not in the food.
They could try an alternative claim to negligence, such as a claim a product liability case of a manufacturing or design defect in the spoon. They would still need to show, however, that the defect led to the injury as opposed to Manley himself.
Clearly labeled products are always useful, but not always decisive, in torts cases. For example, in one of the infamous Feres Doctrine cases, doctors left a 30-inch towel in a patient that was later discovered. The towel had writing across it that said it was the property of the U.S. military. Yet, the Supreme Court used the case to create a ban on military personnel from suing the military for negligence, here and here. Towel discoveries and other surgical items are not unique, here and here.
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