At Walmart, Fresh Express promise an “organic mix” and it delivered more than it advertised. A customer in Florida found a bat inside of its Organic Marketside Spring Mix. It was not this bat but it was reportedly a bat. What is interesting from a torts perspective since two people started to eat the lettuce. That raises a question of negligent infliction of emotional distress.
Here is the notice from the Food & Drug Administration:
| Date | Brand Name | Product Description | Reason/ Problem | Company |
|---|---|---|---|---|
| 04/08/2017 | Marketside | Organic Spring Mix | Potential to contain bat body parts (minimal risk of potential rabies contamination) | Fresh Express |
If that seems fairly mild, it is still better than the notice of Fresh Express Marketplace, which referred only to “extraneous animal matter” in its notice while adding that it was only “a single container of the salad.” Of course, it is better than just relabeling at “Bat-avia lettuce” with the slogan “you can’t say Batavia without saying bat.”
Not only could the customers sue for negligent infliction, there is a basis for intentional infliction of emotional distress if there is a showing of recklessness. The elements are (1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. There can also be strict liability in some cases for food poisoning or contamination.
Is it not just plain common sense to dump the greens in a colander and wash them prior to consumption? Would be hard to avoid seeing the bat if this were done.
The bat pictured is a Flying Fox. They are NOT indigenous to North America. Flying Foxes are cute as hell, but the North American bat that came out of that bag was something much less cuddly and appealing.
The bat should have been spotted by the factory’s inspector, whose name was Casey. That’s right, Casey at the Bat. It is clear that Mighty Casey has struck out.