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.
For the full story, click here.
I have several problems with Manley’s claim. If he ate the spoon fragment, it should have passed through his body – being an indigestible substance.
If the spoon fragment was in his food AS a fragment, he would have chewed into it and realized something was there. It was a big enough fragment. I doubt seriously that he was eating without any chewing at all.
If is was in his Frosty, there are two ways to eat this….straw and spoon. It is doubtful that it came out of the Frosty machine as something that large would have lodged in the mechanism. If he was eating the Frosty with a straw (like a milkshake), it wouldn’t have made it through the straw. If he was eating it with a spoon, again, she should have felt something, since it it soft and – while requiring no real chewing – most people would do actually go through the Frosty in their mouth to get the most out of it.
The biggest problem is, it was found in his lung. There is no way it could have gotten there by eating it. There is no way he could have inhaled it without realizing it. If you inhale something like that – in the middle of food that has not been chewed properly, you are going to inhale the food too. You are going to start choking on that food and that spoon fragment. And as I said above, he claims he didn’t know. He is lying. My guess – because of the circumstances – is that he got a doctor friend of his to implant the spoon fragment in his lung, waited long enough to have problems from it and is now attempting to sue Wendy’s for the damages.
I won’t be inviting this human to any cookouts anytime soon.
I want to KEEP my cooking utinsils. Can’t afford new ones. lol
Bet your bippie, or bibbie, utensil logos will be done away with.
Dredd-
Here’s Howlin’ Wolf’s version.
Was he wolfin’ down his food?
Elaine M,
That was an interesting link. Some wacky stuff.
There was a saying at one time ‘take human bites” I can’t help but wonder if another saying holds true…stop inhaling your food.
Chewing is a wonderful way to approach eating.
Maybe Wendy’s should be required to distribute an eating manual with every order of its fast food now. Eating Rule #1: Don’t inhale the plastic spoons…or forks…or knives.
This reminds me of a story I read earlier this year about the Russian man who was found to have a 5 cm. fir tree growing in his lung.
http://www.mosnews.com/weird/2009/04/13/firtree/
Ok, somebody post “Spoonful” by Cream.
“Technically, the spoon was in the control of Manley if it was not in the food.”
I’m thinking “technically” is the 100% appropriate word choice.
There was a reason Jethro Bodine got one side of the pool table to himself: the physical safety of the rest of the Clampett Clan.
At all of the Wendy’s I’ve been to, the utensils are self-serve. If the spoon was in the defendant’s food, he put it there.
“Perhaps he was overwhelmed by brain freeze and couldn’t feel the offending bit slide down his gullet.”
*************
By George, I like that theory.
mespo says…”Depending on the size of the contaminant, this could be a plausible story especially if our putative victim was predisposed to gulping his Frosty’s.”
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Picking up from mespo…Perhaps he was overwhelmed by brain freeze and couldn’t feel the offending bit slide down his gullet.
By the way, Plaintiff alleges he didn’t chew the spoon fragment but that it was concealed in the food itself. Depending on the size of the contaminant, this could be a plausible story especially if our putative victim was predisposed to gulping his Frosty’s.
Alan:
Typically, tainted food cases are ones of strict liability, improper mastication not being an inquiry most Courts are predisposed to sink their teeth into.
This man was not eating food he was inhaling. How the hell did this spoon get caught in his lung? I found the cause: http://www.slashfood.com/2009/09/17/wendys-utensil-found-stuck-in-mans-lung/
This guy needs to slow down and chew his food. Count to 20 when you eat (chew), then swallow. Take a sip of your drink. Count to 20. Then get food, chew and swallow.
To think this guy has all the making of being in industry and commerce. Do you hear that sucking sound. No it is not jobs going to Mexico io super swallow.
He was at least 50% negligent for not chewing his food. If contributory negligence applies, case closed.
NPO, you beat me to the correction.
Did he inhale?