Koperwas v. Publix Supermarkets, Inc.

6 Citing cases

  1. Mathews v. Maysville Seafoods, Inc.

    76 Ohio App. 3d 624 (Ohio Ct. App. 1991)   Cited 12 times
    In Mathews, this court applied the rule of Allen in a case involving a diner who consumed a fish bone while dining at a fast-food restaurant.

    See, also, Webster v. Blue Ship Tea Room, Inc. (1964), 347 Mass. 421, 198 N.E.2d 309. However, the court in Koperwas v. Publix Supermarkets, Inc. (Fla.App. 1988), 534 So.2d 872, 873, appears to find Allen aligned in the "reasonable expectation" test column. This is also the apparent opinion of the court in Thompson v. Lawson Milk Co. (1976), 48 Ohio App.2d 143, 2 O.O.3d 112, 356 N.E.2d 309. Other Ohio courts following Allen have not addressed the question.

  2. Fellner v. Tri-Union Seafoods, L.L.C.

    Civil Action No. 06-CV-0688 (DMC) (D.N.J. Apr. 13, 2010)   Cited 12 times
    Finding that lost value, claimed in addition to personal injury damages, did not change the fact "that this is, in essence, a product liabilities claim"

    Defendants cite a number of cases for the proposition that when a substance is naturally occurring in a food, Plaintiffs have been unable to recover damages as a result of injuries caused by such a substance. See, e.g., Porteous v. St. Ann's Café Deli, 713 So. 2d 454, 458 (La. 1998) (observing that Customer should have been aware of — and alert to the possibility — that a pearl could have been found within the oyster); Ex parte Morrison's Cafeteria of Montgomery, Inc. v. Haddox, 431 So. 2d 975, 979 (Ala. 1983) (finding that plaintiff should have expected the possibility that a fish filet contained bones); Koperwas v. Publix Supermarkets, Inc., 534 So. 2d 872, 873 (Fla. Dist. Ct. App. 1988) ("An occasional piece of clam shell in a bowl of clam chowder is so well known to a consumer of such product that we can say the consumer can reasonably anticipate and guard against it."). These cases, however, did not find that the "naturalness" of the harmful substance acted as a complete defense to liability — rather, they considered it as a factor in assessing the conduct of the buyer and seller.

  3. Newton v. Standard Candy Company, Inc.

    8:06CV242 (D. Neb. Mar. 19, 2008)   Cited 3 times   1 Legal Analyses

    Further, Standard Candy contends that this is not a fact issue, but is a legal one. See Mitchell, 748 N.E.2d at 94 (clam shell piece in a clam strip was, as a matter of law, under either foreign natural test or reasonable expectation test, reasonably expected to be there by the consumer); Allen v. Grafton, 164 N.E.2d 167, 174-75 (1960) (oyster shell in fried oysters did not create liability); Koperwas v. Publix Supermarkets, Inc., 534 So.2d 872, 873 (Fla.App. 1988) (clam shell in clam chowder known to consumer and can be expected to reasonably guard against it); Ex parte Morrison's Cafeteria of Montgomery, Inc., 431 So.2d 975, 979 (Ala. 1983) (bone in fish filet not unreasonably dangerous). Standard Candy again contends that it does not matter which test is used, as under either test it is entitled to judgment as a matter of law, because the plaintiff does not have an expert designated in this case to testify about an undeveloped peanut.

  4. Mexicali Rose v. Superior Court

    1 Cal.4th 617 (Cal. 1992)   Cited 34 times   3 Legal Analyses
    Holding that there is no strict liability where the "injury-producing substance is natural to the preparation of the food served," but recognizing a negligence action in the same circumstances

    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. CampbellSoup 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. Br

  5. Mitchell v. Fridays

    140 Ohio App. 3d 459 (Ohio Ct. App. 2000)   Cited 6 times

    "An occasional piece of clam shell in a bowl of clam chowder is so well known to a consumer * * * that we can say the consumer can reasonably anticipate and guard against it."Id., quoting Koperwas v. Publix Supermarkets, Inc. (Fla.App. 1988), 534 So.2d 872, 873. Moreover, in Ex parte Morrison's Cafeteria of Montgomery, Inc. (Ala. 1983), 431 So.2d 975, the court adopted the reasonable expectation test, but still held for the defendant as a matter of law:

  6. Jackson v. Nestle-Beich, Inc.

    212 Ill. App. 3d 296 (Ill. App. Ct. 1991)   Cited 4 times

    follows: Cases Continuing To Apply The Foreign-Natural DoctrineMix, Silva, Evert, Mexicali,Lamb v. Hill 112 Cal.App.2d 41 245 P.2d 316 Norris v. Pig'n Whistle Sandwich Shop, Inc. 79 Ga. App. 369 53 S.E.2d 718 Brown v. Nebiker 229 Iowa 1223 296 N.W. 366 Musso v. Picadilly Cafeterias, Inc. 178 So.2d 421 MussoTitle v. Pontchartrain Hotel 449 So.2d 677 Riviere v. J.C. Penney Co. 478 So.2d 965 Webster v. Blue Ship Tea Room, Inc. 347 Mass. 421 198 N.E.2d 309 Phillips v.Town of West Springfield 405 Mass. 411 540 N.E.2d 1331 Adams v. Great Atlantic Pacific Tea Co. 251 N.C. 565 112 S.E.2d 92 Coffer v. Standard Brands, Inc. 30 N.C. App. 134 226 S.E.2d 534 Courter v. Dilbert Bros., Inc. 19 Misc.2d 935 Stark v. Chock Full O'Nuts 77 Misc.2d 553 Allen v. Grafton 170 Ohio St. 249 164 N.E.2d 167 Cases Not Adopting Foreign-Natural DoctrineEx parte Morrison's Cafeteria of Montgomery, Inc. 431 So.2d 975 MorrisonHochberg v. O'Donnell's Restaurant, Inc. 272 A.2d 846 Koperwas v. Publix Supermarkets, Inc. 534 So.2d 872 Zabner v. Howard Johnsons, Inc. 201 So.2d 824 Johnson v. C.F.M., Inc. 726 F. Supp. 1228 Bryer v. Rath Packing Co. 221 Md. 105 156 A.2d 442 Yong Cha Hong v.Marriott Corp. 656 F. Supp. 445 Phillips v. Town of West Springfield 405 Mass. 411 540 N.E.2d 1331 Webster v. BlueShip Tea Room, Inc. 347 Mass. 421 198 N.E.2d 309 Stark v. Chock Full O'Nuts 77 Misc.2d 553 Courter v. Dilbert Bros. Inc. 19 Misc.2d 935 Williams v. Braum Ice Cream Stores, Inc. 534 P.2d 700 O'Dell v.DeJean's Packing Co. 585 P.2d 399 Bonenberger v. Pittsburgh Mercantile Co. 345 Pa. 559 28 A.2d 913 Wood v. Waldorf System, Inc. 79 R.I. 1 83 A.2d 90 Matthews v. Campbell Soup Co. 380 F. Supp. 1061 Jim Dandy Fast Foods,Inc. v. Carpenter 535 S.W.2d 786 Jeffries v. Clark's Restaurant Enterprises, Inc. 20 Wn. App. 428 580 P.2d 1103 Betehia v. Cape Cod Corp. 10 Wis.2d 323 103 N.W.2d 64 California and (1952), , (bone in chicken pie).