MOSK, J., Dissenting. —

I

The majority hold that processed food containing a sharp, concealed bone is fit for consumption, though no reasonable consumer would anticipate finding the bone. They declare in effect that the bone is natural to the dish, therefore the dish is fit for consumption. The majority never explain why this should be the rule, when it is universally held that in the analogous case of a sharp bit of wire in processed food, liability occurs under both the implied warranty of fitness and the theory of strict liability for defective consumer products.

Nor does the majority reject the reasoning of cases which impose warranty and strict liability because of a violation of the reasonable expectation of the consumer. The justification offered for the majority's conclusion is that it is the view of the intermediate appellate courts of Louisiana. With all due respect to the courts of Louisiana, most states and commentators would reject the majority's conclusion.

The issue presented by this case is largely semantic: what exactly do we mean when we say an object is "foreign to" or "natural to" a dish? "Natural to" surely cannot include all natural material. Salmonella is natural and feces are natural, but their presence in food surely makes the food unfit for consumption. What about a hamburger made out of chopped rat flesh? Natural food, certainly, but my colleagues would not find such a meal fit for consumption in warranty terms. So what does the term "natural to" mean? I suspect it means that any consumer should anticipate finding the object in the meal. In other words, the object should reasonably be anticipated. When we add, as the majority opinion does, that "natural" means natural to the dish as served, this conclusion becomes inescapable.

Every court knows that the consumer who says he or she does not anticipate a bone in a T-bone steak is not being truthful. Apparently, this court had the same feeling in 1936 about a consumer who said he did not anticipate a bit of bone in a chicken pie. We see the same outrage against the disingenuous consumer in New England cases championing the traditional New England chowder, bones, shells, and all. (See e.g., Webster v. Blue Ship Tea Room, Inc. (1964) 347 Mass. 421 [ 198 N.E.2d 309, 312].)

Courts are naturally concerned to protect the restaurateur from that same deceptive consumer. The question remains whether this concern has allowed us to fashion a rational, workable rule of law. I find no such rule in the majority opinion. Rather, I find that the majority has created a rule that seems bizarre in application to mass producers and distributors of processed food, irrational in differentiating between natural and unnatural contaminants, and unfair in saddling the objectively reasonable — and truthful — consumer with costs he or she had no way of protecting against.

II

A restaurateur sells food under an implied warranty that the food is reasonably fit for consumption. (Cal. U. Com. Code, § 2314; Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 681 [ 59 P.2d 144].) Whether or not the restaurateur is negligent, when a person is injured by a foreign object in food, or by contaminated food, it has long been settled that he or she may bring a cause of action against the purveyor of the food on a theory of breach of implied warranty. ( Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 687 [ 59 P.2d 142].)

From very early times, the common law imposed an extraordinary duty on purveyors of food and drink to provide wholesome, pure products. (See Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [ 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; see also Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 129, fn. 10 [ 104 Cal.Rptr. 433, 501 P.2d 1153]; Rest.2d Torts, § 402A, com. b; Prosser Keeton, Torts (5th ed. 1984) § 97, p. 690.) In fact, it was from these cases that the doctrine of strict liability arose. ( Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62; Suvada v. White Motor Co. (1965) 32 Ill.2d 612 [ 210 N.E.2d 182, 185-186]; Jacob E. Decker Sons, Inc. v. Capps (1942) 139 Tex. 609 [ 164 S.W.2d 828, 832, 142 A.L.R. 1479]; Prosser Keeton, Torts, supra, § 97, at p. 690; Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960) 69 Yale L.J. 1099, 1103-1114 [tracing doctrine back to 1266 and an English statute prohibiting victualers and cooks from selling "corrupt" food for immediate consumption]; Titus, Restatement (Second) of Torts Section 402A and the Uniform Commercial Code (1969) 22 Stan.L.Rev. 713, 735-742 [noting early English cases imposing liability on taverners selling "corrupt" food for immediate consumption].)

It was recognized early on that the warranty of fitness of food was not a matter of contract terms, but was instead a rule of liability imposed as a matter of public policy. It was based on a "distinct implied warranty peculiar to sales of food, although the obligation existed long before implied warranties were recognized. This implied warranty was not based on any reliance by the buyer upon the representations of the seller, or upon his skill and judgment, but was grounded squarely upon the public policy of protecting the public health. . . . [¶] . . . [¶] While a right of action in such a case is said to spring from a `warranty' it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health." ( Jacob E. Decker Sons, Inc. v. Capps, supra, 164 S.W.2d at p. 831; see also Eisenbeiss v. Payne (1933) 42 Ariz. 262 [ 25 P.2d 162, 166]; Race v. Crum (1918) 222 N.Y. 410, 415-416 [ 118 N.E. 853].)

Our decision in Goetten v. Owl Drug Co., supra, 6 Cal.2d at page 687, makes it clear that for public health reasons, we impose liability on restaurateurs beyond that arising from the breach of the normal duty of due care: "`A person who maintains a restaurant, or lunch counter holds himself out as one who has for sale food which, so far as it is under his control, is wholesome and free from foreign substances dangerous to the human system.'" Even where there is no negligence, there may be a cause of action: "`While there exists the action for damages where negligence of the purveyors of food can be proven, this is not the only protection afforded to their customers. [¶] The application of the rule of implied warranty to cases such as that before us may impose a heavy burden upon the keepers of restaurants and lunch counters, but considerations of public policy and public health and safety are of such importance as to demand that such an obligation be imposed. As between the patron, who has no means of determining whether the food served is safe for human consumption, and the seller, who has the opportunity of determining its fitness, the burden properly rests with the seller, who could have so cared for the food as to have made the injury to the customer impossible.'" ( Ibid.)

Thus, courts have imposed extraordinary liability — essentially strict liability — on restaurateurs in order to protect the public health.

We started a wild goose chase, however, when this court declared in 1936 that when the injury is caused by an object which is natural to the food being served, there can be no liability. ( Mix v. Ingersoll Candy, supra, 6 Cal.2d 674 (hereafter Mix).) In Mix, the plaintiff unwittingly swallowed a sharp fragment of chicken bone contained in a chicken pot pie he consumed in the defendant's restaurant. We affirmed the trial court order dismissing the plaintiff's complaint for negligence and breach of implied warranty.

The Mix court explained that the statutory implied warranty of fitness of food (see former Civ. Code, § 1735, now Cal. U. Com. Code, § 2314) does not make the purveyor an insurer, but merely requires that food be reasonably fit for human consumption. Although conceding that it is frequently a question for the jury to determine whether an alleged defect makes food not reasonably fit for consumption, we maintained that a court in certain cases may find as a matter of law that an alleged defect does not make the food unfit for consumption. We explained that it is a matter of common knowledge that chicken pies occasionally contain chicken bones, and suggested that any substance natural to the food being served should be anticipated by the consumer and, as a matter of law, its presence does not make the food unfit for consumption. "Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. . . . Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone — although it be admitted that an ideal cherry pie would be stoneless." ( Mix, supra, 6 Cal.2d at p. 682.) We concluded as a matter of law that a chicken pot pie containing chicken bones is reasonably fit for consumption. As for the negligence claim, we concluded that since the restaurateur had no duty to offer a perfect chicken pie, he or she was not negligent in serving a pie with a bone in it. ( Id. at pp. 682-683.)

The Mix rule does not withstand analysis. Our overriding concern has been public health; there is no difference to public health whether the consumer is injured by an unexpected bit of bone or an unexpected bit of wire. A natural object may cause as much harm and be as unanticipated as a foreign object in food, so that it is simply illogical to distinguish between the two solely on the basis of their provenance. (See, e.g., Ex Parte Morrison's Cafeteria of Montgomery, Inc. (Ala. 1983) 431 So.2d 975, 978; Zabner v. Howard Johnson's, Incorporated (Fla.Dist.Ct.App. 1967) 201 So.2d 824, 826; O'Dell v. DeJean's Packing Co., Inc. (Okla.Ct.App. 1978) 585 P.2d 399, 402; Betehia v. Cape Cod Corp. (1960) 10 Wis.2d 323 [ 103 N.W.2d 64, 67].)

A nutshell in a scoop of ice cream, a bit of crystalized corn in a serving of corn flakes or a chunk of bone in a hamburger is as harmful and unanticipated from the injured consumer's point of view as a bit of rock, glass or wire in the same food products. For social policy reasons we have long held the restaurateur strictly liable for injuries caused by unwholesome food, and there is no reason to abandon this social policy when the object in food that causes the injury is "natural."

It is a fallacy to assume that all objects which were a natural part of the ingredients of the food at an early stage of preparation are characteristic of the finished product or are anticipated by the consumer of the finished product. ( Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d at p. 826; see also Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d at p. 978; O'Dell v. DeJean's Packing Co., Inc., supra, 585 P.2d at p. 402; Betehia v. Cape Cod Corp., supra, 103 N.W.2d at pp. 67, 68-69.) The more highly processed the food, the less it is to be anticipated that injurious natural objects such as shells or bones will be present.

The court in Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d 824, 826, analyzing a case in which the plaintiff was injured by a walnut shell in ice cream, stated the case against Mix well: "Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. . . . Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served."

And as the Massachusetts high court explained, rejecting its own earlier dicta supporting Mix: "The foreign substance — natural substance test exonerates a seller of food from liability for the lack of fitness of the food for ordinary purposes simply because the injury causing substance was natural to the food. It fails to focus the seller's attention on the consumer's reasonable beliefs. . . ." ( Phillips v. Town of West Springfield (1989) 405 Mass. 411 [ 540 N.E.2d 1331, 1332-1333].)

I agree with the observation of the Alabama high court: "The undesirability of the foreign substance test lies in the artificial application at the initial stage of processing the food without consideration of the expectations of the consumer in the final product served. Surely it is within the expectation of the consumer to find a bone in a T-bone steak; but just as certainly it is reasonable for a consumer not to expect to find a bone in a package of hamburger meat. It is entirely possible that a natural substance found in processed food may be more indigestible and cause more injury than many `foreign' substances." ( Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d 975, 978.)

The majority are apparently uncomfortable with the irrationality of the Mix rule, discussing with apparent approval the case law establishing that food is unfit for consumption if it contains injurious objects that the reasonable consumer would not reasonably anticipate. In fact, the majority state that they are adopting this "reasonable expectation" standard. Yet, inexplicably, the majority retain the view, which is completely inconsistent with the case law establishing the reasonable expectation standard, that natural objects do not violate the reasonable expectation of the consumer.

Without any particular effort at analysis, the court has put its approval on the Louisiana rule for injuries caused by food. (See Title v. Pontchartrain Hotel (La.Ct.App. 1984) 449 So.2d 677 ( Title); Loyacano v. Continental Insurance Company (La.Ct.App. 1973) 283 So.2d 302 ( Loyacano).) As I distill the rule, natural objects in food that cause injury can give rise only to a negligence cause of action, requiring the consumer to prove both that he or she did not anticipate the presence of the injurious object, and that the defendant failed to take adequate steps to exclude the object from the food. Foreign objects, however, that cause injury, also give rise to warranty liability and strict liability if the consumer can show they were not reasonably to be anticipated. As one commentator explained, Louisiana's "so-called two-step approach is in reality merely an application of the foreign/natural test, a fact that is clear from the requirement that the plaintiff can recover only by proving negligence when the substance is natural." (Note, Breach of Implied Warranty: Has the Foreign/Natural Test Lost Its Bite? (1990) 20 Mem. St. U.L.Rev. 377, 405-406.)

The majority opinion suggests that in a gentle evolution, courts across the country have moved away from the strict Mix rule, and that now the Louisiana rule represents the majority view. Actually, no other jurisdiction has adopted the Louisiana standard. Loyacano, supra, 283 So.2d 302, and Title, supra, 449 So.2d 677, upon which the majority place great weight, have only been cited in Louisiana cases, with two exceptions. One federal district court cites Loyacano as an "example of the confusion which adherence to the foreign-natural distinction can create" and observes that "Texas courts have not descended into this quagmire and this Court is confident that they will not." ( Matthews v. Campbell Soup Company (S.D.Tex. 1974) 380 F. Supp. 1061, 1065, 1066.) The other exception is the Louisiana cases that have been cited in our own Court of Appeal's decision in Evart v. Suli (1989) 211 Cal.App.3d 605 [ 259 Cal.Rptr. 535]. But in that case, the court made no suggestion that the plaintiff, who had alleged implied warranty and strict liability claims as well as negligence, should be limited to proving negligence.

The majority opinion claims that "[o]ther states have applied the reasoning of Loyacano, supra, 283 So.2d 302, and Title, supra, 449 So.2d 677. . . ." In support of this assertion, the majority rely heavily on Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d 975. Actually, Morrison's Cafeteria neither cites the Louisiana cases nor applies the two-step test advocated in Louisiana and in the majority opinion. Morrison's Cafeteria is simply an example of a case holding that the reasonable consumer should anticipate the defect complained of. The opinion forthrightly rejects the rigid Mix rule, while agreeing that, in some cases, it can be determined as a matter of law that the food complained of is fit for consumption. In place of the Mix rule, the court substituted a rule turning on the reasonable expectation of the consumer, in reliance on Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d 824. The court in Ex Parte Morrison's Cafeteria, supra, 431 So.2d 975, did not limit persons injured by natural defects in food to a negligence cause of action. It concluded, rather, that the reasonable consumer should, as a matter of law, anticipate finding a one-centimeter bit of bone in a fish filet.

Similarly, none of the cases cited in the majority opinion adopt, cite or use reasoning similar to the Louisiana rule that would limit one injured by any natural object to a negligence cause of action. Through these citations, the majority opinion treats any case in which the court has applied the reasonable expectation test and found against the plaintiff as a matter of law as one supporting its view. Our analysis must be more refined, however, because our task is to determine not so much the outcome of this lawsuit as the standard to be applied.

Far from being the majority rule, as the opinion claims, the Louisiana rule is unique to that state. The majority of courts overall, and the clear majority of recent decisions, have completely abandoned the Mix distinction between foreign and natural contaminants in food, and instead analyze the reasonable expectation of the consumer. ( Yong Cha Hong v. Marriott Corp. (D.C.Md. 1987) 656 F. Supp. 446, 448 [aorta in fried chicken wing]; Matthews v. Campbell Soup Company, supra, 380 F. Supp. 1061 [pearl in canned oyster soup]; Carl v. Dixie Co. (Ala. 1985) 467 So.2d 960 [bone in chicken]; Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d at pp. 978-979 [bone in fish fillet should be anticipated]; Hochberg v. O'Donnell's Restaurant, Inc. (D.C. 1971) 272 A.2d 846, 848-849 [olive pit in olive in martini]; Koperwas v. Publix Supermarkets (Fla.Dist.Ct.App. 1988) 534 So.2d 872; Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d 824, 826-827 [shell in walnut ice cream]; Bryer v. Rath Packing Company (1959) 221 Md. 105 [ 156 A.2d 442, 77 A.L.R.2d 1] [bone in chow mein made from canned "boned" chicken]; Phillips v. Town of West Springfield, supra, 540 N.E.2d at p. 1332 fn. 1 [bone in cubed turkey dish]; O'Brien v. Dora Ferguson Catering, Inc. (Mass.App.Ct. 1988) 6 U.C.C. Rep. Serv. 1434 (Callaghan) [bone in chicken pie]; Feingold v. Town Lyne House, Inc. (Mass.App.Ct. 1983) 36 U.C.C. Rep. Serv. 453 (Callaghan) [crab shell in crab casserole]; Stark v. Chock Full O'Nuts (1974) 77 Misc.2d 553 [ 356 N YS.2d 403] [walnut shell in sandwich]; Allen v. Grafton (1960) 170 Ohio St. 249 [ 164 N.E.2d 167, 174] [oyster shell in fried oyster plate should be anticipated]; Thompson v. Lawson Milk Co. (1976) 48 Ohio App.2d 143 [ 356 N.E.2d 309] [cartilage in chopped ham]; O'Dell v. DeJean's Packing Co., Inc., supra, 585 P.2d 399 [pearl in canned oysters]; Williams v. Braum Ice Cream Stores, Inc. (Okla.Ct.App. 1974) 534 P.2d 700 [cherry pit in ice cream]; Hunt v. Ferguson-Paulus Enterprises (1966) 243 Or. 546 [ 415 P.2d 13] [cherry pit in pie]; Bonenberger v. Pittsburgh Mercantile Co. (1942) 345 Pa. 559 [ 28 A.2d 913, 143 A.L.R. 1417] [oyster shell in canned oysters]; Wood v. Waldorf Sys. (1951) 79 R.I. 1 [ 83 A.2d 90, 93-94] [chicken bone in soup]; Jim Dandy Fast Foods, Inc. v. Carpenter (Tex.Civ.App. 1976) 535 S.W.2d 786 [unusual bone in fried breast of chicken]; Battiste v. Thomas Diving Corp., Inc. (V.I. 1979) 26 U.C.C. Rep. Serv. 324 (Callaghan); Jeffries v. Clark's Restaurant Enterprises, Inc. (1978) 20 Wn. App. 428 [ 580 P.2d 1103, 1104] [crab shell in crab sandwich]; Betehia v. Cape Cod Corp., supra, 103 N.W.2d 64 [bone in restaurant chicken sandwich]; see also Johnson v. C.F.M., Inc. (D.Kan. 1989) 726 F. Supp. 1228 [coffee grounds in cup of coffee; rejects foreign-natural distinction and imposes strict liability without examining expectation of consumer].)

A number of these cases find that the consumer's reasonable expectations have not been violated, but they do not employ the Mix or the Louisiana foreign-natural distinction. Rather, they decide on a case-by-case basis whether, as a matter of law, the consumer should have anticipated the object that caused the injury. (See, e.g., Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d 975, 978-979 [bone in fish filet should be anticipated]; Allen v. Grafton, supra, 164 N.E.2d 167, 174 [oyster shell in fried oyster plate should be anticipated]; Carl v. Dixie Co., supra, 467 So.2d 960 [bone in chicken should be anticipated]; Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d 824 [walnut shell in walnut ice cream should be anticipated].)

Thus, not only is the Mix view dubious, it is treated as a fallacy and anachronism in the majority of cases decided in the last 30 years. It has no support whatsoever among the commentators. As early as 1951, the foreign-natural distinction received critical reviews. "Insofar as these cases rest on the notion of `naturalness' in the sense that nothing that is an inherent part of the raw product itself can be a legal defect, they do not hold water." (Dickerson, Product Liability and the Food Consumer (1951) § 14.2, pp. 184-185.)

A more recent comment takes on the foreign-natural distinction as not only irrational and unfair, but a violation of the intent of the Uniform Commercial Code. Calling the test "antiquated and confusing" to which few jurisdictions "cling," this commentator points out that: "It is the failure to recognize the inability of the foreign/natural test to adapt to changing realities of the consumer marketplace that results in inequitable decisions and denies recovery to plaintiffs injured by objects that no ordinary consumer would expect to find in the finished food dish. This failure also undermines the reasoning behind adoption of the breach of implied warranty provisions of the Uniform Commercial Code that provide relief for injured consumers without requiring a showing of negligence on the part of the manufacturer or supplier." (Note, Breach of Implied Warranty: Has the Foreign/Natural Test Lost Its Bite?, supra, 20 Mem. St. U.L.Rev. at pp. 407-408, fn. omitted.) The author continues, charging that use of the foreign-natural distinction improperly focuses on the nature of the object found in the food, rather than on the nature of the warranty, which was "meant to be applied as a form of strict liability." ( Id. at p. 408.) "Application of the foreign/natural test rather than the reasonable expectations test evidences a misunderstanding of the nature of the implied warranty of merchantability with respect to food. The foreign/natural test presumes that the implied warranty refers to the absence of any foreign substances in the food. The true nature of the warranty, however, is that it guarantees that the food will be merchantable, implying that the food can be consumed without resulting injury or illness." ( Id. at pp. 407-408; see also 3 Anderson, Uniform Commercial Code (3d ed. 1983) § 2-314:185, p. 272 [reasonable expectation test preferable]; Luetto, Attack of the Killer Enchilada: The Chicken Bone Law Revisited (1990) 17 Western St. U.L.Rev. 429, 436, 439.)

Normally, of course, the reasonable expectation of the consumer as to the content of food is a question for the jury. ( Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d at pp. 978-979; Hochberg v. O'Donnell's Restaurant Inc., supra, 272 A.2d 846, 849; Williams v. Braum Ice Cream Stores, Inc., supra, 534 P.2d at p. 702.) It is theoretically possible to determine that a flaw in food does not render the food unfit as a matter of law, but this is so not because the offending object is natural to the dish, but because any reasonable consumer would anticipate the problem. ( Ex Parte Morrison's Cafeteria of Montgomery, Inc., supra, 431 So.2d 975, 978-979; Allen v. Grafton, supra, 164 N.E.2d 167, 174.) I cannot say as a matter of law that the reasonable consumer should anticipate bones in a chicken enchilada. Accordingly, I would hold that the question is one of fact for the jury to determine.

III

The majority opinion indicates that California Uniform Commercial Code recognizes the foreign-natural distinction. This suggestion is inconsistent with the interpretation of identical language in other jurisdictions. In California, the implied warranty of merchantability is found in Uniform Commercial Code section 2314 It provides that unless excluded, there is a warranty implied in the sale or service of food for value that the item is "fit for the ordinary purposes for which such goods are used." This section is derived verbatim from the Uniform Commercial Code (Cal. Code coms. to Cal. U. Com. Code, § 2314, note 10, 23A West's Ann. Cal. U. Com. Code (1964 ed.) § 2314, p. 266), and thus is identical to the provisions applicable in the many states that have rejected the foreign-natural distinction in the context of a Uniform Commercial Code claim. (See, Yong Cha Hong v. Marriott Corp., supra, 656 F. Supp. at p. 448; Hochberg v. O'Donnell's Restaurant, Inc., supra, 272 A.2d at p. 848; Phillips v. Town of West Springfield, supra, 540 N.E.2d 1331, 1333; Allen v. Grafton, supra, 164 N.E.2d at p. 169, 174-175; Williams v. Braum Ice Cream Stores, Inc., supra, 534 P.2d at p. 702.) Instead of the Mix rule, these cases hold that in the warranty context, the crucial factor in determining whether food is reasonably fit for consumption is the reasonable expectation of the consumer. This is considered the better view in commentary on the Uniform Commercial Code. (3 Anderson, Uniform Commercial Code, supra, § 2-314:185, at p. 272.)

While our code comments indicate that the Uniform Commercial Code provision we adopted was considered consistent with Goetten and Mix, the context of this comment was meant merely to show that the California Uniform Commercial Code is consistent with our earlier law treating the provision of restaurant meals as a sale rather than a service. There is absolutely no indication that the Legislature intended to adopt the foreign-natural distinction. Other enactments indicate the Legislature's understanding that natural food products may give rise to implied warranty liability. Our Legislature has recognized that food should be considered adulterated by a natural substance if the substance occurs in such quantity as to render it injurious to health. (Health Saf. Code, § 26520.) Further, the Legislature obviously assumes that defective natural foods may be the basis for liability, since it found it necessary specifically to exempt manufacturers of certain food products, such as sugar and butter, from liability for injuries caused by those products. (See Civ. Code, § 1714.45, subd. (a)(2).) In sum, there is no justification for interpreting the warranty provision of the California Uniform Commercial Code to exclude liability in this context.

The majority opinion is also incorrect in suggesting that the Restatement Second of Torts would limit liability when it is a natural object that causes injury to the consumer of a food product. It cites the Restatement Second of Torts, section 402A, comment h, and page 30. However, the majority should refer to comment e to section 402A of the Restatement Second of Torts, extending the rule of strict liability to unprocessed food, so that "the supplier of poisonous mushrooms which are neither cooked, canned, packaged, nor otherwise treated is subject to the liability here stated." The Restatement Second of Torts has been relied on freely in cases that impose liability for natural defects in food. ( Matthews v. Campbell Soup Company, supra, 380 F. Supp. at p. 1065 [pearl in oyster]; Jim Dandy Fast Foods, Inc. v. Carpenter, supra, 535 S.W.2d 786, 789 [bone in chicken]; Gates v. Standard Brands, Inc. (1986) 43 Wn. App. 520 [ 719 P.2d 130, 134] [bone in candy bar]; see also Mott's, Inc. of Mississippi v. Coco's Family Restaurant (1988) 158 Ariz. 350 [ 762 P.2d 637] [strict liability judgment for plaintiff injured by bone in chicken salad].)

IV

I see no reason to breathe new life into an arbitrary and artificial distinction between natural and foreign defects in food products. This distinction is no longer followed in the majority of jurisdictions that have considered the matter in the last 30 years. The particular form of the distinction upon which the majority rests, the Louisiana rule, is especially inappropriate in that it admits that the consumer may not anticipate certain natural defects in food, but nonetheless limits the injured consumer to a negligence cause of action. I agree with the majority that when the consumer is injured by a foreign object, we should determine liability on warranty and strict liability theories on the basis of the reasonable expectation of the consumer. In the interest of public health, I would apply the same standard to so-called natural defects.

Kennard, J., concurred.

ARABIAN, J.

I dissent.

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. In my view, a ruling so at odds with fundamental fairness, public policy, and common sense cannot withstand informed scrutiny; worse, its legacy will be that it bred a regressive result.

To understand today's decision, it is necessary to undertake a brief review of the law of implied warranty. As early as 1431, the common law recognized an implied warranty of merchantability in the sale of food. As one medieval lawyer observed, "it is ordained that none [shall] sell corrupt victuals." (Y.B. 9 Hen. VI, f. 53b (1431), quoted in Titus, Restatement (Second) of Torts: Section 402A and the Uniform Commercial Code (1969) 22 Stan.L.Rev. 713, 735 (hereafter Titus).) A special warranty rule applicable in food cases evolved in the early American courts, as well. ( Id. at pp. 736-738.)

The principle underlying the warranty rule was essentially twofold; first, it was recognized that the seller is generally in a better position than the buyer to assure that food is fit for consumption; furthermore, as between an unsuspecting purchaser and a potentially unaware seller, public health and consumer confidence mandate that the innocent consumer be made whole. As one New York court observed at the turn of the century: "This rule is based upon the high regard which the law has for human life. The consequences to the consumer resulting from the consumption of articles of food sold for immediate use may be so disastrous that an obligation is placed upon the seller to see to it, at his peril, that the articles sold are fit for the purpose for which they are intended. The rule is an onerous one, but public policy, as well as the public health, demand such obligation should be imposed. . . . If there be any poison in the article sold, or if its condition render it unfit for consumption, and the consumer be thereby made ill, some one must, of necessity suffer, and it ought not to be the one who has had no opportunity of determining the condition of the article. . . ." ( Race v. Krum (1918) 222 N.Y. 410, 415-416 [ 118 N.E. 853, 854], quoted in Titus, supra, 22 Stan.L.Rev. at pp. 737-738; see generally Prosser, The Assault Upon the Citadel ( Strict Liability to the Consumer) (1960) 69 Yale L.J. 1099 [detailing the gradual extension of the implied warranty from food to nonfood products]; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [ 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049].)

By the mid-1930's, California had embraced these principles, as well. In Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683 [ 59 P.2d 142] and Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674 [ 59 P.2d 144] (hereafter Mix) our court overruled several prior decisions to hold that the furnishing of food constituted a "sale" within the meaning of the California Sales Act; thus, Goetten held that a restaurant patron could recover in warranty for injuries sustained from chewing on a piece of glass in a dish of chow mein. Mix, handed down the same day as Goetten, underscored the principle that implied warranty attaches to the sale of food, but unfortunately placed an additional gloss on the warranty rule. It was the Mix court's view that the implied warranty did not extend to injuries caused by substances "natural" to the food served, such as a chicken bone in a chicken pie; it covered only damage caused by "foreign" substances such as glass, stones, wires or nails. ( 6 Cal.2d at p. 681.)

The so-called "foreign-natural" distinction announced in Mix was soon challenged, however, by a competing standard known as the "reasonable expectation" test. (See Wood v. Waldorf System (1951) 79 R.I. 1 [ 83 A.2d 90].) Under the latter, the pivotal question is not whether the injury-producing substance is "natural" or "foreign" to the food served, but rather whether the consumer may reasonably expect to find such a substance in the particular type of dish or food. "Naturalness" may be relevant to the determination, but only insofar as it bears on the average consumer's reasonable expectations. (See 3 Anderson, Uniform Commercial Code (3d ed. 1983) §§ 2-314:184 2-314:185, pp. 271-273; 3 Williston on Sales (4th ed. 1974) § 18-10, pp. 100-105.)

The majority opinion rests squarely on the foreign-natural distinction announced over 50 years ago in Mix; accordingly, its merit must be judged against the continued viability of that doctrine. In this regard, the majority argue that the Mix rule or a variant thereof "has been followed for over 30 years" by a number of jurisdictions and continues to represent the developing "trend" in the courts. (Maj. opn., ante, at pp. 624, 630.) What trend? Six paltry decisions are cited as proof of its ongoing vitality. Three additional cases from the State of Louisiana are offered to demonstrate how one "enlightened" jurisdiction has modified the Mix rule so that a consumer injured by a "natural" substance may attempt to prove that the seller was negligent, although the consumer may not claim that the food was unfit for consumption under the usual implied warranty rules unless the substance may be characterized as "foreign." With this, the majority find the Louisiana variant of the Mix rule to be persuasive and adopt it as the law in California.

The majority are mistaken. A survey of the leading cases and commentaries reveals that the vast majority have rejected the "foreign-natural" rule in favor of the reasonable expectation test. As one federal court (applying Maryland law) recently observed, the "`reasonable expectation' test has largely displaced the natural-foreign test adverted to by defendants." ( Yong Cha Hong v. Marriott Corp. (D.Md. 1987) 656 F. Supp. 445, 448; see also Phillips v. Town of West Springfield (1989) 405 Mass. 411 [ 540 N.E.2d 1331, 1332] ["The reasonable expectations test has been generally recognized as preferable to the foreign substance-natural substance test."].) A recent law review note on the subject also concludes: "The majority of jurisdictions that have addressed cases concerning deleterious, naturally occurring substances in food are moving toward adoption of the reasonable expectation test." (Note, Breach of Implied Warranty: Has the Foreign/Natural Test Lost Its Bite? (1990) 20 Mem. St. U.L. Rev. 377, 407 (hereafter Note).)

Turning first to the commentators, it is no exaggeration to say that the doctrine has met with almost universal criticism, if not outright ridicule. In his book on the subject, Professor Dickerson states: "Insofar as these cases rest on the notion of `naturalness' in the sense that nothing that is an inherent part of the raw product itself can be a legal defect, they do not hold water . . . [¶] The better test of what is legally defective appears to be what consumers customarily expect and guard against." (Dickerson, Products Liability and the Food Consumer (1951) § 4.2-4.3, p. 185.) Anderson, in his multivolume work on the Uniform Commercial Code, also aligns himself on the side of the reasonable expectation test, pronouncing it the "preferable" rule and concluding: "The reasonable expectation test, rather than the foreign-natural test, should be applied to determine whether there was a breach of warranty. . . ." (3 Anderson, Uniform Commercial Code, supra, § 2-314:185, at p. 272.)

More pointed criticism has been levelled, as well. One author, noting the prevalence of processed foods on the market which make it difficult if not impossible for the reasonable consumer to inspect, states: "In an era of consumerism, the foreign-natural standard is an anachronism. It flatly and unjustifiably protects food processors and sellers from liability even when the technology may be readily available to remove injurious natural objects from foods. The consumer expectations test, on the other hand, imposes no greater burden upon processors or sellers than to guarantee that their food products meet the standards of safety that consumers have customarily and reasonably come to expect from the food industry." (Janes, Products Liability — The Test of Consumer Expectation for "Natural" Defects in Food Products (1976) 37 Ohio St. L.J. 634, 652.)

Another scholar has written: "The [foreign-natural] distinction makes bad sense. It makes even worse law. If the court were taken seriously, one is confronted by the ludicrous spectacle of the chef in the local hashhouse carefully culling the chicken chow mein to remove any ground glass, tacks or other debris he might encounter while disdainfully ignoring the serrated chicken bones therein on the assumption that the Mix decision immunizes him from liability." (Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties (1961) 8 UCLA L.Rev. 281, 304.)

The most recent article on the subject concludes that, in those few jurisdictions which still "cling to the antiquated and confusing foreign/natural test," the result is "inequitable decisions" and the denial of recovery "to plaintiffs injured by objects that no ordinary consumer would expect to find in the finished food dish. This failure also undermines the reasoning behind the adoption of the breach of implied warranty provisions of the Uniform Commercial Code that provide relief for injured consumers without requiring a showing of negligence on the part of the manufacturer or supplier." (Note, supra, 20 Mem. St. U.L. Rev. at p. 407.)

Turning from the commentators to the cases, one finds the response to the foreign-natural doctrine equally if not more critical. The position of the courts which reject the doctrine is well stated in Zabner v. Howard Johnson's, Incorporated (Fla.Dist.Ct.App. 1967) 201 So.2d 824, 826: "The `foreign-natural' test as applied as a matter of law . . . does not recommend itself to us as being logical or desirable. [¶] The reasoning applied in this test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. . . . Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served. . . . [¶] . . . [¶] The test should be what is `reasonably expected' by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation."

These criticisms are amplified in the frequently cited case of O'Dell v. DeJean's Packing Co., Inc. (Okla.Ct.App. 1978) 585 P.2d 399, 402: "Oftentimes, extensive damage and even death is caused by a substance in the prepared food that is `natural' to the food item in its original state. Thus, there seems little logic in the `foreign-natural' test. It appears the weakness in this test leads to ridiculous results. Where is the line drawn? For example, chicken bones are natural to chicken, but so are beaks, claws, and intestines. One therefore wonders what the courts in the jurisdictions following the `foreign-natural' test would decide in the chicken soup case if it were a chicken beak or claw that caused the damage rather than a chicken bone, because all three parts are `natural' to the chicken. . . ."

"If one purchases a whole fish to bake surely he or she could `reasonably expect' to find bones in it. . . . [¶] If one `reasonably expects to find an item in his or her food then he guards against being injured by watching for that item. When one eats a hamburger he does not nibble his way along hunting for bones because he is not `reasonably expecting' one in the food. Likewise, when one eats processed oysters, normally one does not gingerly graze through each oyster hunting for a pearl because he is not `reasonably expecting' one in the food. It seems logical some consideration should be given to the manner in which the food is normally eaten in determining if a person can be said to `reasonably expect' an item in processed food." ( O'Dell v. DeJean's Packing Co., Inc., supra, 585 P.2d at p. 402.)

Criticisms similar to those quoted above appear in cases far too numerous to quote at length. Recently, the foreign-natural test has been dismissed as "artificial" ( Ex Parte Morrison's Cafeteria of Montgomery, Inc. (Ala. 1983) 431 So.2d 975, 978) and "unsound from the outset" ( Jackson v. Nestle-Beich, Inc. (1991) 212 Ill. App.3d 296 [ 569 N.E.2d 1119, 1123]). In addition to those previously noted, cases that have rejected the foreign-natural distinction in favor of the reasonable expectation standard include: Carl v. Dixie Co. (Ala. 1985) 467 So.2d 960; Hochberg v. O'Donnell's Restaurant, Inc. (D.C. 1971) 272 A.2d 846; Johnson v. C.F.M., Inc. (D.Kan. 1989) 726 F. Supp. 1228; Yong Cha Hong v. Mariott Corp., supra, 656 F. Supp. 445; Stark v. Chock Full O'Nuts (1974) 77 Misc.2d 553 [ 356 N.Y.S.2d 403]; Williams v. Braum Ice Cream Stores, Inc. (Okla.Ct.App. 1974) 534 P.2d 700; Bonenberger v. Pittsburgh Mercantile Co. (1942) 345 Pa. 559 [ 28 A.2d 913, 143 A.L.R. 1417]; Wood v. Waldorf Systems, Inc., supra, 83 A.2d 90; Allen v. Grafton (1960) 170 Ohio St. 249 [ 164 N.E.2d 167]; Thompson v. Lawson Milk Co. (1976) 48 Ohio App.2d 143 [ 356 N.E.2d 309]; Jim Dandy Fast Foods, Inc. v. Carpenter (Tex.Civ.App. 1976) 535 S.W.2d 786; Matthews v. Campbell Soup Co., supra, 380 F. Supp. 1061; Jeffries v. Clark's Restaurant Enterprises, Inc. (1978) 20 Wn. App. 428 [ 580 P.2d 1103]; Betehia v. Cape Cod Corp. (1960) 10 Wis.2d 323 [ 103 N.W.2d 64].

And what of the five jurisdictions cited by the majority as proof of the rule's continuing vitality? (Maj. opn., ante, at pp. 624-625.) The majority do not reveal that one, Illinois, has recently declined to follow its own 50-year-old precedent in Goodwin v. Country Club of Peoria (1944) 323 Ill. App. 1 [ 54 N.E.2d 612], opting instead for the reasonable expectation test. (See Jackson v. Nestle-Beich, Inc., supra, 569 N.E.2d 1119, 1124 ["After reviewing the foregoing, we conclude that the foreign-natural doctrine originally set forth in Mix and adapted by the second district in Goodwin should not be followed."].) Nor does the majority appreciate the fact that another, North Carolina, recently declined to read Adams v. Great Atlantic Pacific Tea Co. (1960) 251 N.C. 565 [ 112 S.E.2d 92], as adopting a "true" foreign-natural test, construing it instead as a reasonable expectation case. ( Goodman v. Wenco Management (1990) 100 N.C. App. 108 [ 394 S.E.2d 832, 835] ["the Adams test leads to approximately the same result as the `reasonable expectation' test"].)

As to the remaining cases on which the majority rely, Brown v. Nebiker (1941) 229 Iowa 1223 [ 296 N.W. 366], is not a true foreign-natural decision; although it cites Mix, its holding is based on the conclusion that one who eats a pork chop "ought to anticipate and be on his guard against the presence of bones, which he knows will be there." ( Id. at p. 371.) Similar reasoning underlies the Massachusetts decision in Webster v. Blue Ship Tea Room, Inc. (1964) 347 Mass. 421 [ 198 N.E.2d 309] (famous for the wonderful fish chowder recipe contained therein). Although the case is often cited to support the foreign-natural rule, in fact its reasoning is simply that fish bones in New England fish chowder ought to be "anticipated" by the reasonable consumer. ( Id. at p. 312.) "It is not too much to say that a person sitting down to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds." ( Ibid.) Indeed, the Massachusetts high court has recently joined the majority of jurisdictions in rejecting the foreign-natural doctrine, observing of its earlier decision: "This court's discussion in its Webster opinion focused on the reasonable expectations of a consumer of fish chowder and concluded, as a matter of law, that bones in fish chowder should reasonably be expected. . . . In our view, the reasonable expectations test is the appropriate one to apply in determining liability for breach of warranty of merchantability. . . ." ( Phillips v. Town of West Springfield, supra, 540 N.E.2d at p. 1333.)

Thus apart from the States of Georgia (where Norris v. Pig'n Whistle Sandwich Shop (1949) 79 Ga. App. 369 [ 53 S.E.2d 718], appears to still be good law) and Louisiana (which is unique among the 50 states for the absence of a common law tradition) the foreign-natural rule lacks substantial support in any jurisdiction in the United States. Indeed, as the foregoing discussion demonstrates, the doctrine has been so thoroughly savaged by courts and commentators alike that its significance today is largely historical: a quaint relic from a distant past. Such is the state of the legal and moral fossil into which the majority seek to breathe life.

Finding cold comfort in the case law and commentaries, the majority next attempt to bolster their position through resort to legislative history. The effort is equally unavailing. In support of its holding, the majority state that the Legislature "was aware of" the Mix rule when it repealed former Civil Code section 1735 and adopted the implied warranty sections of the Uniform Commercial Code. (Cal. U. Com. Code, §§ 2314, 2315.) The California code comment to section 2314 does make reference to Mix; however, the comment merely notes that the statute's definition of a "sale" as including the serving of food and drink "is in accord with prior California case law. Klein v. Duchess Sandwich Co., 14 Cal.2d 272 . . . and Mix v. Ingersoll Candy Co., 6 Cal.2d 674. . . ." (See 23A West's Ann. Cal. U. Com. Code (1964 ed.) § 2314, p. 265.) As noted earlier, this was a matter of some controversy preceding the adoption of the Uniform Commercial Code. (See 3 Williston on Sales, supra, § 18-10, at p. 100.) Mix overruled prior case law (especially Loucks v. Morley (1919) 39 Cal.App. 570 [ 179 P. 529]) to hold that the implied warranty applied to the furnishing of food. (See Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties, supra, 8 UCLA L.Rev. at pp. 293, 303-304 ["the California Supreme Court did not delay overlong in reversing Loucks and adopting the precept, now codified by the UCC, that restaurant transactions are sales."].) The majority's implication that the California Uniform Commercial Code adopted the foreign-natural rule finds no support in any official commentary or other authority of which I am aware.

CONCLUSION