El Rancho Sells Family Cake Containing Sharp Scissors and Later Offers To Make Amends By Giving Family A New Cake

unnamedCBS is reporting that a family near Dallas had a true surprise at their surprise birthday party for Yoly Nava’s mother when a $60 cake from El Rancho Market was found to have a large pair of scissors baked into the cake. No this was not part of a prison break, just an apparent added ingredient. Two things were a bit surprising. First was the response of El Rancho and second was that a cake from El Rancho actually costs $60.

Here is the really scary part. The family celebrates “mordida,”a tradition in the Latino culture were the person being celebrated usually dives face first into the cake.

According to the story, a family member spotted the scissors before someone decapitated the matriarch.

So the family complained to the store which referred all inquiries to the corporate office. The corporate office then responded . . . by offering the family a new cake. That’s right. A new cake. The surprise party is over and the grandmother escaped lacerations, but El Rancho would like to make it right with yet another cake and a promise that they are telling employees not to leave cutting items in cakes.

Had the grandmother been cut, the store was facing a myriad of possible claims and a strong inclination toward liability in such cases. As noted in Matthews v. Campbell Soup Company,

Texas courts have long recognized that the manufacturers of food products warrant that they are wholesome and fit for human consumption. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (Tex. 1942); Griggs Canning Co. v. Josey, 164 S.W.2d 835, 139 Tex. 623, (Tex. 1942); See also Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (Tex. 1938). The warranty was imposed by operation of law as a matter of public policy:

It seems to be the rule that where food products sold for human consumption are unfit for that purpose, there is such an utter failure of the purpose for which the food is sold, and the consequences of eating unsound food are so disastrous to human health and life, that the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, supra, at 829.

There is a funny case (thank you Roger Schechter) out of California that once explored the issue of natural versus unnatural items found in food. In Mexicali Rose v. Superior Court , 822 P.2d 1292 (Cal. 1992) the court looked at a case where a restaurant patron suffered lacerations of his throat after consuming an enchilada that contained a one-inch long chicken bone. The court held

If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective. A plaintiff in such a case has no cause of action in strict liability or implied warranty. If, however, the presence of the natural substance is due to a restaurateur’s failure to exercise due care in food preparation, the injured patron may sue under a negligence theory.

However, Justice Arabian, dissented and offered this observation:

Plainly stated, the rule announced by the majority is this: If a restaurant patron becomes ill as the result of ingesting a cow’s eye inside a hamburger patty there may not be an assertion that the seller breached an implied warranty of merchantability, i.e., that the food was unfit for human consumption, because the injury-producing substance (the cow’s eye) was “natural” to the product served and therefore “reasonably” to be expected by the average consumer. However, if the same hamburger contains a pebble or a noxious insect, a claim of unfitness will lie because the injury-producing substance is “foreign” to the product.

The El Rancho offer appears to reflect a legal concern over creating precedent in the payment of damages when no physical injury occurred. However, this judgment seems perfectly clueless to the implications of offering a simple replacement — not only given the fact that the party is over but the family was already entitled to a cake without potentially lethal items contained within it.

Kudos: Professor Roger Schechter

12 thoughts on “El Rancho Sells Family Cake Containing Sharp Scissors and Later Offers To Make Amends By Giving Family A New Cake”

  1. “not that many of you grasp what GMOs are” No, too many folks such as yourself are passing out bad information and flat-out lies. The shame is it would only take a little effort on your part to educate yourself about the value of GMOs. After all, humans have been eating GMOs for millenia. I am alive because of GMOs. Millions of people around the world are not dead of starvation because of GMOs. But pointing this out doesn’t rake in the bucks for people pushing “organic” foods (another lie pushed by folks trying to screw the ignorant and naive, because *all* food, without exception, is organic, regardless of the method of production, as are most pesticides) and anti-vaccine books. Yes, let’s go back to those heady days of mass starvation, polio plagues and death in childbirth.

  2. dearest neo, for heavens sakes, did you catch a whiff of perfectly illegal vineyard workers’ urine in your texas 2015 vino? from your tone i would bet you’re a kitten hater, but anyone bright enough to find interest in this blog should not be nurturing that base character flaw. i doubt there’s a single soul here ignorant of the definition and issues surrounding use of GMOs, so that insect in your soup won’t even get ya off the runway.

    you seem to be angry at justice arabian, but he’s the one whose dissent matches what i think is your point. altho your true point may be that the mere thought of sharp scissor tips makes you want to do violence or at least post insulting, degrading thoughts. hmm.

    i lived in albuquerque, nm, for 23 years, long enough to learn that there are more variations in latino cultures than anyone could claim to be familiar with in a dozen lifetimes. in albuquerque alone there are a plethora of spanish dialects, each claiming more authenticity than the others – plus the favorite “spanglish”. your heinz-57 white bread gringos are the minority there, and there are tonnes of rich traditions and centuries old family celebrations within each separate latino culture. look again at the angle of those scissor tips: then imagine a tiny, grand matriarch seated at the head of the family table. a faceplant could easily bring her throat level with those blades and cause an early end to the party. i don’t see it as a laughing matter, in a scenario like this. a whopping lawsuit perhaps, a bizarre, needless death, but not a party joke.

  3. Patty Cake Patty Cake Bakers Man
    Make me a cake as fast as you can
    Pit and pat it and mark it with a tee
    Put it in the oven for Patty and Me.

    (without the scissors)

  4. Kind of like King Cakes! Wiki says:

    A king cake (sometimes shown as kingcake, kings’ cake, king’s cake, or three kings cake) is a type of cake associated in a number of countries with the festival of Epiphany at the end of the Christmas season; in other places, it is associated with the pre-Lenten celebrations of Mardi Gras/Carnival.

    What started out, roughly 300 years ago, as a dry French bread–type dough with sugar on top and a bean inside is now a sweet, sugary and iced Danish-type dough braided with cinnamon inside and a plastic doll underneath. King cakes are made of a cinnamon-filled dough in the shape of a hollow circle. They have a glazed topping and are sprinkled with colored sugar. Hundreds of thousands of King Cakes are eaten in New Orleans during the Carnival season.

    Traditionally, a small plastic or porcelain baby is hidden into the king cake. It is usually green, gold, or purple to represent the colors of the holiday. Originally, the baby was placed into the cake to symbolize baby Jesus. Fava beans were also used to represent Jesus.

    Today, the baby symbolizes luck and prosperity to whoever finds it in his/her slice of cake. In some traditions, the finder of the baby is designated “king” or “queen” for the evening. That person is also responsible for purchasing next year’s cake,[8] or for throwing the next Mardi Gras party.

    Many bakers have recently been placing the baby outside of the cake, and leaving the hiding to the customer. There is a potential of customers choking on or swallowing the baby, and bakers want to stay clear of this responsibility.[9]</blockquote.

    Squeeky Fromm
    Girl Reporter

  5. I am familiar with the ‘cake diving’ in the Latino community, but it is more of a face plant. She still would have been hurt, but not impaled.

  6. I had a lid-handle screw fall into a Calphalon tea kettle. I was fortunate not to drink a screw. Scissors would have been worse.

  7. a case where a restaurant patron suffered lacerations of his throat after consuming an enchilada that contained a one-inch long chicken bone.

    What? For God’s sake. Chew your food. Have you no manners. Also chew with your mouth closed.

    Seriously. The store couldn’t figure out that the people should either get a new cake or a refund. I know that there is a lot of fraud and fakery on the part of the public to complain about products to get free stuff. Fly in the soup Etc. Whether this family is like that or whether the store has been a victim of this type of shakedown, is not clear.

    I’ve attended a lot of birthday parties for Mexican friends and relatives, and never have seen anyone “plunge their face” into a cake. Never.

    Did they get to keep the scissors. Sometimes kitchen shears are very expensive and a great tool to have. I don’t know what I would do without my kitchen shears. That would be a nice bonus.

  8. I wonder what the Texas law says about GMOs, not that many of you grasp what GMOs are, ie. legal poisons in our food supply.

    Additionally, according to “Justice Arabian” dissent, I’d love to feed him cow manure in his hamburgers as according to him is perfectly legal. If he refused to eat it I’d shove it down his throat.

  9. Some states are consumer oriented and some are business oriented. If this had happened in California the potential for the consumer to raise a stink would have raised the recompense. Texas being a business oriented state resulted in ‘a new cake’. In Texas the cake maker could have demanded that the customer return the scissors and perhaps get another cake.

    The bottom line is PR and it is unlikely that this family which being Hispanic and typically celebrates many times a year for any reason whatsoever, a good thing, will use this company again nor will any of their family and friends within earshot. The company made a stupid move. The man in the store, in charge should have jumped immediately in with a new cake, delivered, along with apologies and many extras. The ‘so what’ attitude of business works well for the banks and other institutions that have us all by the short hairs but a business that depends on goodwill needs to perform better than this.

  10. Selling a cake w/ scissors in it is not nearly as bad PR as not selling a cake for a gay wedding.

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