"[O]ne who negligently furnishes food or drink containing a foreign substance which causes injury or damage to the consumer thereof may be held liable therefor." Ray v. Deas, 112 Ga. App. 191 ( 144 SE2d 468) (1965); Watson v. Augusta Brewing Co., 124 Ga. 121 (1) ( 52 SE 152) (1905). Persons selling food for human consumption are under a duty to "exercise due care and diligence respecting its fitness, and they may be held liable in damages, if, by reason of any negligence on their part, contaminated and spoiled or unwholesome food is sold or persons are made ill and suffer damages as a result of eating such food."

[Cit.]" Ray v. Deas, 112 Ga. App. 191, 192(2) ( 144 S.E.2d 468) (1965). But

Just as a contract for sale arises when a grocery store patron places the goods in her shopping basket (even though she could return the goods to the shelf and not buy them — see id. at 33-34), so a contract for the sale of restaurant food arises upon placing the order (even though the order could be canceled). See Keaton v. A.B.C. Drug Co., 266 Ga. 385, 386 (1) (b) ( 467 S.E.2d 558) (1996) ("grasping the product and beginning to take the product from the shelf with the intent to purchase it" constitutes privity necessary for implied warranty); cf. Ray v. Deas, 112 Ga. App. 191 192 (2) ( 144 S.E.2d 468) (1965) (restaurateur may be liable for breach of implied warranty of merchantability for serving food containing foreign substance that causes injury). Chambley presented evidence establishing the warranty and its breach.

Derst presented evidence and argued that it was only the distributor of the product, that it did nothing to alter the condition or packaging of the honeybun, and that in the absence of evidence that it knew or should have known of the defective product, there could be no liability. The court granted both motions and Sirmons appeals. Citing OCGA § 51-1-23, and numerous cases including Rays v. Deas, 112 Ga. App. 191 ( 144 S.E.2d 468) (1965), and Crosby v. Callaway, 65 Ga. App. 266 ( 16 S.E.2d 155) (1941), Sirmons argues that a jury question was presented since Hires and Derst ought to have known of the presence of the dime in the honeybun. The undisputed evidence was that the bun was in a sealed cellophane package which had not been pierced or opened in any way until Sirmons opened it. Sirmons testified that the package appeared airtight and that there was nothing unusual about the packaging.

Numerous other cases from this court, while not dealing specifically with goods sold in original containers, have used a strict liability approach to hold retailers liable for damage, suffered due to a breach of the U.C.C. implied warranty of merchantability. Redfern Meats v. Hertz, 134 Ga. App. 381 ( 215 S.E.2d 10) (1975) (improperly operating truck); Ray v. Deas, 112 Ga. App. 191 ( 144 S.E.2d 468) (1965) (foreign substance in hamburger). Ellis v. Rich's, Inc., 233 Ga. 573, supra, would appear at first glance to hold that the sealed-container doctrine still applies.

He is entitled to the benefit of the implied warranty of fitness even though another person paid for it. These principles were given to the jury in my charge and no objection to that portion of the charge was made by either party. Decker Sons v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479; Ray v. Deas, 1965, 112 Ga. App. 191, 144 S.E.2d 468; Levy v. Paul, 1966, 207 Va. 100, 147 S.E.2d 722; Annotations, 7 A.L.R.2d 1027, 77 A.L.R.2d 7; 35 Am.Jur.2d Food § 88; Prosser, Torts, 3d ed. 1964, ch. 14. See, also, Kenower v. Hotels Statler Co., 6 Cir. 1942, 124 F.2d 658. Restatement 2d, Torts § 402A(2)(a).

" Numerous other cases from this court, while not dealing specifically with goods sold in original containers, have used a strict liability approach to hold retailers liable for damage, suffered due to a breach of the U.C.C. implied warranty of merchantability. Redfern Meats v. Hertz, 134 Ga.App. 381, 215 S.E.2d 10 (1975) (improperly operating truck); Ray v. Deas, 112 Ga.App. 191, 144 S.E.2d 468 (1965) (foreign substance in hamburger)."

The other line of authorities hold that the test to be applied is what should "reasonably be expected" by a customer in the food sold to him. Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64 (1960); Ray v. Deas, 112 Ga. App. 191, 144 S.E.2d 468 (1965); Zabner v. Howard Johnson's Incorp., 201 So.2d 824 (Fla.App. 1967); Hochberg v. O'Donnell's Restaurant, Inc., 272 A.2d 846 (D.C.App. 1971); Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442 (1959); Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d 913 (1942). 12A O.S. 1971 § 2-314[ 12A-2-314] provides in pertinent part as follows:

Id. at 1094. In basic accord with the result in Rudloff are: Evart v. Suli, 211 Cal. App. 3d 605 (1989) (summary judgment reversed: jury question whether unrecovered hard object, "agreed" to be piece of beef bone, was of sufficient "size and quantity" to be harmful to consumer); Mitchellv. BBB Servs Co., 261 Ga. App. 240 (2003) (summary judgment reversed: plaintiff should not reasonably have anticipated presence of small, hard "bone color" object in Wendy's hamburger given nature of that food, and burger was therefore defective within meaning of UCC § 2-314); Ray v.Deas, 112 Ga. App. 191 (1965) (patron who bit into "hard unyielding substance" in hamburger entitled to recover on breach-of-warranty theory if restaurateur negligently failed to inspect contents of burger); Goodman v. Wenco Foods, Inc., 333 N.C. 1 (1992) (summary judgment reversed in part: jury question as to whether bone the size of small fingernail in hamburger should be reasonably anticipated); Elias v.Norton, 53 Ohio App. 38 (1936) (student injured by "large piece of metal" in hamburger entitled to proceed against school-cafeteria operators). Regarding the vicarious liability of McDonald's as franchisor, see Miller v. McDonald's Corp., 150 Or. 274 (1997) in which plaintiff allegedly bit into "heart-shaped sapphire stone" in "Big Mac" sandwich.