California Civil Jury Instructions (CACI)
1233. Implied Warranty of Merchantability for Food - Essential Factual Elements
[Name of plaintiff] claims that [he/she] was harmed by the [food product] that was sold by [name of defendant] because the [food product] was not fit for human consumption. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [ate/drank] a [food product] sold by [name of defendant];
2. That, at the time of purchase, [name of defendant] was in the business of selling the [food product] [or by [his/her] occupation held [himself/herself/itself] out as having special knowledge or skill regarding this [food product]];
3. That the [food product] was harmful when consumed;
4. That the harmful condition would not reasonably be expected by the average consumer;
5. That [name of plaintiff] was harmed; and
6. That the [food product] was a substantial factor in causing [name of plaintiff]’s harm.
Directions for Use
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243, Notification/Reasonable Time.
The advisory committee believes that the judge, not the jury, would decide whether the food substance is natural or foreign under Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617 [4 Cal.Rptr.2d 145, 822 P.2d 1292].
Sources and Authority
- “In the peculiar context of foodstuffs, the theory of breach of an implied warranty of merchantability has closer affinities to tort law than to contract law because it allows recovery of damages, without regard to privity of contract, for personal injuries as well as economic loss.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 871 [93 Cal.Rptr.2d 364], internal citations omitted.)
- “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.” (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 [4 Cal.Rptr.2d 145, 822 P.2d 1292].)
- “If the injury-causing substance is foreign to the food served, then the injured patron may also state a cause of action in implied warranty and strict liability, and the trier of fact will determine whether the substance (i) could be reasonably expected by the average consumer and (ii) rendered the food unfit or defective.” (Mexicali Rose, supra, 1 Cal.4th at p. 633.)
- The Mexicali Rose decision was limited to commercial restaurant establishments. (Mexicali Rose, supra, 1 Cal.4th at p. 619, fn. 1.) However, the reasoning of that case has been applied to supermarkets. (Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196 [33 Cal.Rptr.2d 899].)
- “The term ‘natural’ refers to bones and other substances natural to the product served, and does not encompass substances such as mold, botulinus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served.” (Mexicali Rose, supra, 1 Cal.4th at p. 631, fn. 5.)
- It appears that the court would decide as a matter of law if the injury- producing substance is “natural” or not: “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.” (Mexicali Rose, supra, 1 Cal.4th at p. 633.)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.32 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 268, Food (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.201 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)