CBS 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