Mexicali Rose v. Superior Court

822 P.2d 1292, 1 Cal. 4th 617, 4 Cal. Rptr. 2d 145, 92 Cal. Daily Op. Serv. 712, 92 Daily Journal DAR 1107, 16 U.C.C. Rep. Serv. 2d (West) 607, 1992 Cal. LEXIS 4

• Court: California Supreme Court
• Decided: January 23, 1992
• Docket: S012707
• Status: Published

Opinions

Opinion

LUCAS, C. J.

We granted review to consider the continuing vitality of Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674 [59 P.2d 144] (hereafter Mix), which held a restaurant owner was not liable in tort or implied warranty for injury to a patron caused by a chicken bone served in a chicken pie.¹ (Id. at p. 682.) Mix distinguished bones and other substances “natural” to certain types of food, from “foreign substances” (such as a nail, wire or glass), which Mix determined cannot be anticipated by a reasonable consumer.² Mix concluded that “[b]ones 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.” (6 Cal.2d at p. 682.) Under Mix, therefore, a substance causing injury that is natural to the food served can never lead to tort or implied warranty liability.

Real party in interest (plaintiff), Jack A. Clark, was a customer at petitioners’ (defendants’) restaurant. He ordered a chicken enchilada and sustained throat injuries when he swallowed a one-inch chicken bone contained in the enchilada. He brought an action for damages based on theories of negligence, breach of implied warranty, and strict liability. He alleged defendant Mexicali Rose negligently left the bone in the enchilada and the food was unfit for human consumption. He also asserted he did not expect to find a bone, and it is not common knowledge there may be bones in chicken enchiladas. In addition, plaintiff sought punitive damages, alleging malice, fraud, and oppression based on the allegation defendants initially refused to obtain medical assistance for him.

The trial court overruled defendants’ demurrer, but the Court of Appeal issued a writ of mandate, directing the trial court to sustain the demurrer on all causes of action. The Court of Appeal noted it was compelled, under principles of stare decisis, to follow the Mix rule precluding liability for injuries caused by naturally occurring substances in food. On appeal, plaintiff asserts the foreign-natural test draws an arbitrary line of liability, focusing on the substance itself, and unfairly exonerates the restaurateur from all liability simply because the injury-producing substance happens to be “natural” to the food served. Pointing to changes in technology that have occurred during the past 55 years, plaintiff asserts defendants should be held responsible for the failure to remove all bones from its chicken enchiladas because it is today easier to remove bones from food than it was in 1936, when Mix was decided. Plaintiff contends we should abandon the foreign-natural test of Mix, supra, 6 Cal.3d 674, and adopt a test developed in other jurisdictions based on the “reasonable expectations” of the customer. (See, e.g., Ex Parte Morrison’s Cafeteria of Montgomery, Inc. (Ala. 1983) 431 So.2d 975, 978 (Morrison’s Cafeteria).)

Under the foregoing proposed test, according to plaintiff, defendants could be held (i) liable in negligence for their failure to exercise reasonable care in the preparation of the food, (ii) liable for violating California’s statutory implied warranty because a chicken bone in a chicken enchilada renders the latter unfit for human consumption under the implied warranty of merchantability and fitness of California Uniform Commercial Code sections 2314 and 2315, and (iii) strictly liable because the food item was “defective” under the theory of Restatement Second of Torts section 402A, comment i, imposing strict liability when food is “dangerous beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

The question we address, therefore, is whether a restaurant keeper may be held liable for serving food containing substances natural to the product that, when consumed by the patron, cause injury. As explained below, we agree with plaintiff that a “reasonable expectation” test is applicable in this context and, in part at least, is consistent with the development of tort law in our jurisdiction. Accordingly, we adopt that test as our own. As we further explain, although we conclude that under a reasonable expectation test plaintiff may not state a cause of action under the theories of strict liability or breach of the implied warranties of merchantability or fitness, we conclude that under the same test, he may state a cause of action in negligence based on defendants’ asserted failure to exercise due care in the preparation of the chicken enchilada.

1. Mix and its progeny: The foreign-natural test and the reasonable expectations of the consumer

An early rule of implied warranty in cases involving foreign or adulterated food substances was adopted, as of 1960, by 17 jurisdictions, including California. (Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960) 69 Yale L.J. 1099, 1106.) A review of the California cases reveals that the acceptance of an implied warranty rule against manufacturers in cases involving unfit foodstuffs was based on the rationale that a manufacturer that sold food items could no longer hide behind the shield of privity to absolve itself of liability. (Klein v. Duchess Sandwich Co., Ltd. (1939) 14 Cal.2d 272 [93 P.2d 799] (Klein); Vaccarezza v. Sanguinetti (1945) 71 Cal.App.2d 687 [163 P.2d 470] (Vaccarezza).)

In Klein, supra, 14 Cal.3d 272, the plaintiff’s husband purchased a sandwich that was infested with maggots. The sandwich had been prepared by the defendant and distributed to a restaurant for sale. (Id. at pp. 273-274.) The plaintiff ate the sandwich and became ill. Klein interpreted the term “buyer” under the Uniform Sales Act (making sellers of adulterated food liable to buyers) to include the “ultimate consumer,” and held that the warranty of fitness should apply to a “manufacturer” of foodstuffs, notwithstanding the fact that a retailer may have sold the goods to the consumer. Klein determined that foodstuffs do not fall within the general rule of privity between the manufacturer and the consumer, even though the purchase is made through a retailer. (Id. at p. 284; see also Vaccarezza, supra, 71 Cal.App.2d 687, 689 [implied warranty imposes an “absolute liability” on manufacturers of food products].)

This same implied warranty for foreign or adulterated substances in food was extended to independent restaurant owners who purchased the food from outside manufacturers in Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 685 [59 P.2d 142], filed the same day as Mix, supra, 6 Cal.2d 674. In Goetten, a patron choked on a piece of glass in a serving of chow mein at the defendant’s lunch counter. Initially, we rejected the defendant’s contention that furnishing food did not constitute a sale for purposes of statutory implied warranty, and based our holding on the fact that restaurateurs have the food under their control at the time it is served to the patron. (Goetten, supra, 6 Cal.2d at p. 687.) We imposed on the restaurateur a burden to inspect the food, reasoning that: “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.)

A different rule developed when the injury was caused by an object deemed natural to the food being served. In Mix, supra, 6 Cal.2d 674, the plaintiff swallowed a fragment of chicken bone contained in a chicken pot pie he consumed in the defendant’s restaurant. Mix affirmed the trial court order dismissing the plaintiff’s complaint for negligence and breach of implied warranty. We held there could be no liability under either an implied warranty or negligence theory, explaining that the statutory implied warranty of fitness of food (see former Civ. Code, § 1735, replaced by Cal. U. Com. Code, §§ 2314, 2315)³ does not make the purveyor an insurer, but merely requires that food be reasonably fit for human consumption. Although we conceded that it is frequently a question for the jury to determine whether an injury-producing substance present in food makes the food unfit for consumption, we maintained that a court in appropriate cases may find as a matter of law that an alleged harmful substance in food does not make the food defective or unfit for consumption. We explained our holding as follows:

“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. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie. In the case of Goetten v. Owl Drug Co., [supra, 6 Cal.2d 683] this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed. This is true, but we do not believe that the onerous rule should be carried to its extreme limits. 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, and there could be no breach of the implied warranty under former Civil Code section 1735. (6 Cal.2d at p. 682.)

As for the negligence claim, we concluded that because 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. (6 Cal.2d at pp. 682-683.) Mix stated the negligence rule as follows: “[T]he restaurant keeper’s obligation is limited to the exercise of due care in the preparation and service of food furnished guests. ... [A] duty of exercising due care in the furnishing and serving of food to guests exists on the part of a restaurant keeper, and ... he is liable in damages for any breach of such duty.” (Id. at p. 680.)

After recognizing the duty of care, however, the Mix court observed that injury due to a chicken bone in a chicken pie did not establish a lack of due care amounting to a breach of that duty. The court observed that the negligence issue involved “a question of whether or not a restaurant keeper in the exercise of due care is required to serve in every instance a perfect chicken pie, in that all bones are entirely eliminated. If the customer has no right to expect such a perfect product, and we think he is not so entitled, then it cannot be said that it was negligence on the part of the restaurant keeper to fail to furnish an entirely boneless chicken pie.” (6 Cal.2d at p. 683; see also Silva v. F.W. Woolworth Co. (1938) 28 Cal.App.2d 649 [83 P.2d 76] [no recovery for turkey bone in turkey dressing]; Shapiro v. Hotel Statler Corporation (S.D.Cal. 1955) 132 F.Supp. 891 [no liability for fish bone in seafood dish].)

In 1963, our Legislature repealed former Civil Code section 1735 and adopted California Uniform Commercial Code sections 2314 and 2315. In adopting the new code sections, the Legislature was aware of the common law distinction between foreign and natural substances when determining liability for breach of the implied warranties. Indeed, the California Code comments to California Uniform Commercial Code section 2314 note the Legislature’s recognition of the Mix rule: “The second sentence of subdivision (1), defining as a sale 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; see also Cal. Code coms, to Cal. U. Com. Code, § 2315, & notes of decisions, note 11 [23A West’s Ann. Cal. U. Com. Code, supra, § 2315, pp. 288, 297].)

Contrary to Justice Arabian’s dissent, our Mix rule has not been “universally rejected” but has been followed for over 30 years by several other jurisdictions. For example, in Brown v. Nebiker (1941) 229 Iowa 1223 [296 N.W. 366], the Iowa Supreme Court held that the plaintiff could not recover for injuries caused by a sliver of bone in a pork chop. In affirming a directed verdict for defendant restaurateur, the court observed, “One who eats pork chops, or the favorite dish of spare ribs and sauerkraut, or the type of meat that bones are natural to, ought to anticipate and be on his guard against the presence of bones, which he knows will be there.” (Id. at p. 371.)

In Goodwin v. Country Club of Peoria (1944) 323 Ill.App. 1 [54 N.E.2d 612], the court held that a defense verdict should have been directed in a wrongful death action that arose after a restaurant patron swallowed a bone while eating creamed chicken. The Appellate Court of Illinois observed: “[C]ommon experience dictates that one eating the meat of animals, fowl or fish, should do so with the knowledge that such food may contain pieces of bone. [][]... Although the rule that a restaurant keeper is liable [in implied warranty] for foreign substances in food served to patrons, and is held to impliedly warrant food to be fit and wholesome to be eaten is well settled[,] . . . [w]e do not believe the rule as established in this jurisdiction, exceeds an implied warranty that food served shall be wholesome and fit to be eaten. The importance of pure food to the public must not be ignored. Modern conditions require that establishments serving food shall be operated in a sanitary way and furnish food that is wholesome and fit to be eaten. However, such rule should be construed and applied in a reasonable manner, taking into consideration the common experience of life. When viewed in this light, it must be conceded that practically all meat dishes, whether they consist of beef, pork, fish or fowl, do contain bones peculiar to the food being served.” (Id. at p. 615.)

In Norris v. Pig’n Whistle Sandwich Shop (1949) 79 Ga.App. 369 [53 S.E.2d 718], the Georgia Court of Appeals denied the plaintiff recovery in negligence for injuries caused by a bone in a barbecued pork sandwich. The court noted, “[c]ertainly it was not the intent of our lawmakers to deem an article of food, containing meat, adulterated merely because it contained portions of the animal which were inedible, but which did not render such food unfit for its intended consumption. Otherwise numerous articles of food which necessarily contain inedible portions of animal matter would be deemed adulterated. Numerous meats and fish are normally prepared which contain bone and other inedible matter indigenous to the animal from which the food is derived, yet these articles of food could not be deemed adulterated.” (Id. at p. 723; Webster v. Blue Ship Tea Room (1964) 347 Mass. 421 [198 N.E.2d 309] [no recovery for injury from fish bone in fish chowder]; Adams v. Great Atlantic & Pacific Tea Co. (1960) 251 N.C. 565 [112 S.E.2d 92, 94] [no recovery for injuries caused by grain of corn in box of corn flakes]; Coffer v. Standard Brands, Inc. (1976) 30 N.C.App. 134 [226 S.E.2d 534] [no liability for unshelled filberts]; but see Goodman v. Wenco Management (1990) 100 N.C.App. 108 [394 S.E.2d 832] [application of Adams test would not bar recovery for sizeable bone in hamburger patty].)

2. The evolution of the Mix rule

More recently, however, courts addressing the foreign-natural distinction have deviated from strict application of Mix, supra, 6 Cal.2d 674, to conclude that the ultimate issue of liability should not be based on a determination whether the object causing injury was either foreign or natural, but instead should be based on whether the consumer reasonably should have anticipated the natural injury-producing substance in the food. For example, Brown v. Nebiker, supra, 296 N.W. at page 371, followed our holding in Mix, but also determined that “naturalness” is logically based on the reasonable expectation of the consumer and thus is an issue of fact for the jury to determine unless the injury producing substance is indigenous to the food served. Similarly, although Allen v. Grafton (1960) 170 Ohio St. 249 [164 N.E.2d 167], is often cited as a case adopting the Mix rule, the Ohio Supreme Court stated in dictum that, “ ‘[t]he better test of what is legally defective appears to be what consumers customarily expect and guard against.’ ” (Id. at p. 174.) The Allen court then determined as a matter of law that persons consuming oysters can reasonably anticipate and guard against pieces of oyster shells. Allen held that “It is our conclusion that the presence in one of a serving of six fried oysters of a piece of oyster shell ‘approximately 3x2 centimeters in diameter’ will not justify a legal conclusion either (a) that that serving of fried oysters constituted ‘food’ that was ‘adulterated’ within the meaning of Section 3715.59, Revised Code, or (b) that that serving constituted food not ‘reasonably fit’ for eating.” (Id. at p. 175.)

A subsequent Ohio decision rejected the Mix notion that natural substances should be anticipated as a matter of law and determined that the trier of fact should decide whether a negligence action should be allowed when a plaintiff has been injured by a piece of ham cartilage in chopped ham. (Thompson v. Lawson Milk Co. (1976) 48 Ohio App.2d 143 [356 N.E.2d 309] [adopting reasoning of Allen v. Grafton, supra, 164 N.E.2d 167]; see also Phillips v. Town of West Springfield (1989) 405 Mass. 411 [540 N.E.2d 1331] [reasonable expectation is a question for jury in action for breach of implied warranty by student injured after biting into turkey cube containing turkey bone].)

Many cases adopting a “reasonable expectation” test, however, did not reject completely the foreign-natural test when the injury was caused by a substance natural to the food served. Rather, several courts have retained the foreign-natural distinction in applying the “reasonable expectation” test. In these cases, the “naturalness” of the substance is used to determine which theory of recovery should be allowed—strict liability, implied warranty and/or negligence. When it is found that the injury-producing substance is natural to the food product, such as a chicken bone in a chicken pie, these courts have applied the Mix rule to hold an injured plaintiff cannot state a cause of action based on the breach of the implied warranty of merchantability or strict products liability, because it is a matter of common knowledge that the natural substance is occasionally found in the food served. These courts have departed from Mix, however, in holding that under the same facts, an action can be stated in negligence for the failure to exercise reasonable care in the food preparation.

For example, in Musso v. Picadilly Cafeterias, Inc. (La.Ct.App. 1964) 178 So.2d 421 (Musso), the court recognized that the majority of jurisdictions had adopted the foreign-natural test for liability rather than the “reasonable expectation test” and explained: “We believe the majority view on the subject under consideration to be reasonable and sound. It recognizes and affirms the high degree of care imposed upon the server of foods but does not inflict upon him the unconscionable burden of becoming the absolute, unrestricted and unqualified insurer of his customers. If the server permits alien, extraneous matter not constituting a natural part of the ingredients or finished product (such as glass or other noxious substances), to enter his product during preparation or processing, he is liable for breach of his implied duty to serve a product free of foreign, deleterious substances. However, should the restaurant keeper inadvertently leave in the food substances natural to the ingredients or finished product he is not liable to the customer, as the food is not thereby rendered unwholesome and unfit for human consumption. As a result there is no breach of the implied warranty of wholesomeness.” (Id. at p. 427.)

Musso, however, departed from the majority of jurisdictions applying the strict foreign-natural rule of liability by observing that although plaintiff could not recover for breach of the implied warranty of wholesomeness when injured by a natural food substance, he should be allowed to pursue a negligence claim. The Musso court observed: “An obvious extension of the foregoing rule must perforce be made where the vendor of foods negligently permits substances natural to the ingredients or finished product to remain in the food served the customer and illness or injury results therefrom. Under such circumstances the restaurant keeper is liable because of his negligence.” (Musso, supra, 178 So.2d at p. 427.)

In determining whether the restaurant keeper was negligent, the Musso court stated the following duty of care respecting the preparation of food: “We believe the degree of care incumbent upon the restaurant operator in selecting, preparing and cooking food for customers, including the removal of substances natural to the ingredients or finished product, such as bones from fish or meat and stones or seeds from vegetables or fruit, is the same as that which a reasonably prudent man skilled in the culinary art, would exercise in the selection and preparation of food for his own table.” (Musso, supra, 178 So.2d at p. 427.)

Several years later, the Louisiana courts reconsidered the issue in Loyacano v. Continental Insurance Company (La.Ct.App. 1973) 283 So.2d 302 (Loyacano). There the plaintiff broke a tooth after biting into a bone in a piece of meat wrapped in a sealed package and purchased in the defendant’s store. The court followed the principles expressed in Musso as to implied warranty and strict liability, but adopted the “reasonable expectation” test of liability in considering the plaintiff’s negligence claim. The court observed, “It may be said that a product can be considered defective if it does not meet the reasonable expectations of the ordinary consumer as to its safety. It is not the fact that a defect is a natural one which is important to the inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would naturally take his own precautions.” (Loyacano, supra, at p. 305.) The court then excepted the defendant from implied warranty and strict liability under the facts before it by utilizing the foreign-natural test of liability. The court concluded, “it seems to us that the strict liability imposed upon vendors of sealed packages of that nature, cannot be imposed upon the vendor here, except insofar as a foreign object would be considered. For a natural object, such as a bone, from the only evidence produced in this case, it appears that the inquiry should be directed to the size of the bone left in the ground meat. (Ibid.; see also Shapiro v. Hotel Statler Corporation, supra, 132 F.Supp. 891.)

After the Loyacano court determined that the defendant could not be liable under the theories of strict liability and implied warranty for damages caused by a natural substance in food, it employed a reasonable expectation test to determine the defendant’s negligence. The court explained: “Certainly the reasonable expectation of the ordinary consumer is that the processor and vendor of ground meat would exercise the same care as that which a reasonably prudent man skilled in the art of meat handling would exercise in the removal of bones from the meat. We conclude that the defendant negligently left in the ground meat pieces of bone of a larger size than the consumer might reasonably expect, and is responsible for the damages caused.” (Loyacano, supra, 283 So.2d at p. 306.)

Finally, both Musso and Loyacano were discussed and clarified in Title v. Pontchartrain Hotel (La.Ct.App. 1984) 449 So.2d 677. In Title, a hotel restaurant patron brought an action for damages for injuries sustained when the plaintiff bit a pearl contained in an oyster. The court determined that under Musso and Loyacano, the plaintiff could pursue an action in negligence only. The court explained the rule of liability as follows:

“The determination of negligence requires that construction of a ‘reasonable man’ whose ‘reasonable behavior’ must be defined by determined ‘reasonable expectations.’ Musso’s approach to implied warranty of purveyors of food is a two-pronged one. If the harmful substance is foreign, the defendant is strictly liable and the analysis stops. If the substance is natural to the food, however, the analysis continues: the negligence of the defendant must be determined. It is here, where the reasonableness of defendant’s behavior is being determined, that Louisiana’s approach might be mistaken for the ‘reasonable expectation’ test that a minority of other jurisdictions apply in order to decide whether strict liability is to be applied in the first place. Loyacano is not actually applying the minority ‘reasonable expectation’ test for determination of defendant’s strict liability. Rather it applied the ‘foreign-natural’ test to determine . . . negligence using the language of ‘reasonable expectation.’ Thus, despite the language that makes Loyacano appear to support the minority test, this court did not contradict itself when it stated it was following the majority view expressed in Musso.” (Title v. Pontchartrain Hotel, supra, 449 So.2d at pp. 679-680 (Title).)

Thus, the Title court concluded that the foreign-natural test would still be employed to determine whether the food could be determined unfit as a matter of law, but that the negligence standard of “reasonableness” would be used to determine whether a defendant could be liable in negligence for an injury-producing substance that was natural to the food served. (Title, supra, 449 So.2d at pp. 679-680.)

In 1989, our Court of Appeal adopted the reasoning of the Loyacano and Title courts in Evart v. Suli (1989) 211 Cal.App.3d 605, 610-611 [259 ] (Evart). The Evart court held that although a hamburger containing a piece of bone is not adulterated or unfit as a matter of law, the presence of a bone in hamburger is not a matter that, in common knowledge, is to be reasonably expected by a consumer. Recognizing that it was faced with the same questions addressed by the Loyacano and Title courts, Evart observed that Mix “emphasized several times that a substance causing injury must not only be natural to the type of food, but must also be one which, in common knowledge, should be ‘reasonably anticipated’ by the consumer. . . . The [Mix] court held that a consumer had no right to anticipate or expect an entirely boneless chicken pie because it was a matter of common knowledge that chicken pies contain chicken bones. We do not believe this holding establishes a blanket rule forbidding an inquiry into what a consumer might reasonably expect (or anticipate, to use the court’s wording) in cases in which the existence of a potentially harmful natural substance in a food product is not a matter of common knowledge. This is such a case.” (Id. at p. 611, italics in original, citation and fn. omitted.)

Although the Evart court concluded that the doctrine of strict liability would not apply “even if broken glass, an obviously foreign object, is the source of the plaintiff’s injuries” (211 Cal.App.3d at p. 613, fn. 6), it reversed the trial court’s grant of summary judgment for the defendants. (But see Rest.2d Torts, § 402A, com. h [product not defective and seller not liable in strict liability for abnormal preparation but may be strictly liable for harmful ingredients or foreign objects not characteristic of the food].)⁴

Other states have applied the reasoning of Loyacano, supra, 283 So.2d 302, in adopting similar rules for determining liability when a natural, but injury-producing, substance contained in food causes harm to a customer. For example, in Morrison’s Cafeteria, supra, 431 So.2d at page 978, the court observed that it was adopting a reasonable expectation test of liability but, in doing so, noted that the presence of a one-centimeter bone in a fish fillet that injured a patron did not render the fish unfit or “unreasonably dangerous, as a matter of law.” The court observed that a food product is unreasonably dangerous under the applicable Alabama Extended Manufacturer’s Liability Doctrine, and unfit for consumption under its statutory breach of the implied warranty of merchantability (Ala. Code § 7-2-314 (1975)) if the consumer could not reasonably expect to find such a substance in the dish served. (431 So.2d at p. 978.) In finding no liability under the facts, however, the Morrison’s Cafeteria court noted that a bone found in a fish filet does not render the fish unfit or unreasonably dangerous under either its manufacturer’s liability or implied warranty law. The court explained its holding by observing “that what a consumer is reasonably justified in expecting is a question for the jury [citations]. We agree in most instances this would be true. In other instances, however, we agree with the California Supreme Court in Mix v. Ingersoll Candy Co., supra, [6 Cal.2d 674], wherein the court held: ‘Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute.’ ’’ (Morrison’s Cafeteria, supra, 431 So.2d at p. 978.)

The Morrison’s Cafeteria court concluded that as a matter of law a restaurant patron should reasonably expect to find a fish bone in a fish filet. (431 So.2d at p. 979.) It observed, “[c]ourts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell. . . .” (Ibid.; see also Carl v. Dixie Co. (Ala. 1985) 467 So.2d 960 [consumer should have reasonably expected chicken bone in chicken breast]; O’Dell v. DeJean’s Packing Co., Inc. (Okla.Ct.App. 1978) 585 P.2d 399 [question of fact for jury whether reasonable expectation of consumer a matter of probability of injury producing substance appearing in food, not possibility]; Stark v. Chock Full O’Nuts (1974) 77 Misc.2d 553 [356 N.Y.S.2d 403] [reasonable expectation test allows recovery only if natural substance not reasonably anticipated to be in food served; but see Courter v. Dilbert Bros., Inc. (1958) 19 Misc.2d 935 [186 N.Y.S.2d 334, 343] [no cause of action for prune pit in prune butter because pit is natural to prune and not adulterated substance]; Zabner v. Howard Johnson’s, Incorporated (Fla.Dist.Ct.App. 1967) 201 So.2d 824 [after piece of walnut shell in walnut ice cream injured plaintiff, reasonable expectation test barred claim for breach of implied warranty but allowed negligence claim].)

In sum, the trend developing in courts recently considering the issue whether a plaintiff may recover for injuries caused by a natural or foreign substance can be summarized as follows: 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 to be unfit for human consumption or defective.⁵ Thus, a plaintiff in such a case has no cause of action in implied warranty or strict liability.⁶ The expectations of the consumer do not, however, negate a defendant’s duty to exercise reasonable care in the preparation and service of the food. Therefore, if the presence of the natural substance is due to a defendant’s failure to exercise due care in the preparation of the food, an injured plaintiff may state a cause of action in negligence. By contrast, if the substance is foreign to the food served, then a trier of fact additionally must determine whether its presence (i) could reasonably be expected by the average consumer and (ii) rendered the food unfit for human consumption or defective under the theories of the implied warranty of merchantability or strict liability.

As adopted in most of the preceding decisions, the “reasonable expectation” test differs from the foreign-natural rule of Mix, supra, 6 Cal.2d 674, in two important respects. First, whether bones or other injurious substances ought to be anticipated in a particular dish becomes a question for the trier of fact, unless as a matter of law the food was fit for consumption because the substance was natural to the food served. (See, e.g., Morrison’s Cafeteria, supra, 431 So.2d 975, 978.) Second, and more important, this reasonable expectation test focuses not on the components of the dish, but on the final item sold to the consumer and the expectations that are engendered by the type of dish and the type of preparation used in making the dish. Thus, courts rejecting the exclusive application of the Mix foreign-natural test, which by definition bars a negligence claim, have frequently identified the failure to focus on food preparation and the consumer expectation that is created by processing or by the nature of the dish sold as the principal analytical defect of the Mix rule. (See Morrison’s Cafeteria, supra, 431 So.2d at p. 978.)

Defendants assert that “public policy and good common sense support the Mix rule.” They contend that allowing a plaintiff to recover even in negligence for an injury caused by a natural substance is unreasonable because, they, assert, this would place a burden on all restaurants to remove all bones. Defendants claim the better policy is “to encourage consumers to be careful.”

As noted above, we agree with defendants to the extent they reason that a restaurant patron cannot expect a chicken pie to be free of all bones. Such an expectation would be unreasonable and unrealistic to the ordinary consumer and would not conform to either federal or state health and safety standards.⁷ Moreover, as also discussed above, the implied warranties of merchantability and fitness are based on cases imposing liability for foreign objects in food (see, e.g., Cal. U. Com. Code, § 2314, Cal. Code Com. [see 23A West’s Ann. Cal. U. Com. Code, supra, § 2314, p. 265]), and the Restatement Second of Torts, section 402A, comment h, emphasizes that the doctrine of strict liability applies in the limited situation arising when foreign objects or ingredients not characteristic of food cause harm. Under these guidelines, therefore, a reasonable plaintiff cannot expect a chicken enchilada always to be free of bones, and defendants owe no duty to provide a perfect enchilada.

On the other hand, we disagree with defendants (and Mix, supra, 6 Cal.2d 674) that we should continue to preclude a plaintiff from attempting to state a cause of action in negligence when a substance natural to the preparation of the food product has caused injury. We adopt instead the reasoning of Loyacano, supra, 283 So.2d 302, 306, and Morrison’s Cafeteria, supra, 431 So.2d at page 978, and depart from our foreign-natural rule to the extent it precludes an action against defendants for the failure to exercise due care in the preparation of the chicken enchilada.

Such a new rule, expanding a restaurateur’s potential liability and allowing an action in negligence for injuries caused by both natural and foreign substances in food, corresponds to modern developments in tort law. This court has recognized that traditional tort law principles support imposition of a duty of care when one is in a position to exercise custody or control over another. (Natty v. Grace Community Church (1988) 47 Cal.3d 278, 293 [253 Cal.Rptr. 97, 763 P.2d 948]; see also Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) In light of our health and safety standards and our modern emphasis on Civil Code section 1714 (requiring all persons to use ordinary care to prevent injuries as the result of their conduct), we believe a patron can reasonably expect that a restaurateur will exercise reasonable care in preparing chicken enchiladas so that any natural substances contained in the food will not be either of such size, shape or quantity to cause injury when consumed. It is reasonably foreseeable that a sizable bone could cause the unsuspecting patron substantial injury if swallowed. Under these principles, we believe it is a question for the trier of fact to determine whether the presence of the injury-producing substance was caused by the failure of the defendants to exercise reasonable care in the preparation of the food, and whether the breach of the duty to exercise such care caused the consumer’s injury. In so concluding, we emphasize that restaurateurs have available all the traditional defenses to a negligence cause of action, including comparative negligence.⁸

3. Conclusion

The strict foreign-natural test of Mix, supra, 6 Cal.2d 674, should be rejected as the exclusive test for determining liability when a substance natural to food injures a restaurant patron. We conclude instead that in deciding the liability of a restaurateur for injuries caused by harmful substances in food, the proper tests to be used by the trier of fact are as follows:

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.

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.⁹ Such a rule corresponds to our Legislature’s adoption of California Uniform Commercial Code sections 2314 and 2315; the Restatement Second of Torts, section 402A; and the development of our common law. (See Rest.2d Torts, § 402A, com. h [strict liability may be applicable when foreign objects or ingredients not characteristic of food cause harm]; Rest.2d Torts (appen.) § 402A, reporter’s notes, note 1, pp. 1-2 [§ 402A supported in California by decisions allowing recovery for foreign objects in food]; Evart, supra, 211 Cal.App.3d 605, 611 [agreeing with Loyacano, supra, 283 So.2d 302, and Title, supra, 449 So.2d 677].)

Thus, we conclude that to the extent Mix precludes a cause of action in negligence when injuries are caused by substances natural to the preparation of the food served, it is overruled.

Based on the foregoing, we affirm the Court of Appeal judgment to the extent it directs the trial court to sustain defendants’ demurrers to the implied warranty and strict liability causes of action, and we reverse the judgment directing the demurrer to plaintiff’s negligence cause of action be sustained. The cause is remanded to the Court of Appeal for further proceedings consistent with this holding.

Panelli, J., Baxter, J., and George, J., concurred.

1 Our holding is limited in application to commercial restaurant establishments.

2 The phrase “reasonable consumer” or “ordinary consumer” refers to the reasonable person (under the circumstances) or the reasonable child (defined as a reasonable person of like intelligence, age and experience under the circumstances). (See, e.g., Rest.2d Torts, §§ 283, 283A.)

3 Former section 1735 of the Civil Code provided: “Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: [5] (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” Former Civil Code section 1735 was repealed in 1963 and replaced by California Uniform Commercial Code sections 2314 and 2315. Section 2314 states: “Unless excluded or modified . . . , a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. H] (2) Goods to be merchantable must be at least such as [$]... [f] (c) Are fit for the ordinary purposes for which such goods are used; . . .” Section 2315 states: “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

4 As to the discussion of strict liability and foreign objects, we disapprove Evart v. Suli, supra, 211 Cal.App.3d 605, to the extent it conflicts with our holding.

5 Unfortunately, both dissents misrepresent the scope and application of our holding. The term “natural” refers to bones and other substances natural to the product served, and does not encompass substances such as mold, botulmus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served.

6 Although we note that the issue of express warranty is not present in this case, we emphasize that our test would not be applicable in the express warranty context.

7 We note that federal regulations would generally prohibit bones larger than .85 millimeters in any processed foods (see 9 C.F.R. § 319.5(a) (1990)), and would prohibit the use of mechanically processed meats, which may contain bones, in products such as baby or toddler food, ground beef, comed beef, and lima beans with ham (see 9 C.F.R. § 319.6). The federal regulations, which we use to determine “good manufacturing processes” for foods (Health & Saf. Code, §§ 26209, 25210) contemplate harmful substances in foods, but define these as existing at “low levels [that] are not hazardous to health." (21 C.F.R. § 110.110(a) (1990).) Our own standards emphasize that food containing poisonous or deleterious material “is not considered adulterated if the substance is a naturally occurring substance and if the quantity of such substance in the food does not render it injurious to health.” (Health & Saf. Code, § 26520.)

8 It is important to note that the duty of care we impose today does not extend to a defendant’s assistance or first aid rendered when the customer chokes on a bone. For reasons of public policy, our Legislature has provided that a proprietor must post first aid instructions “designed and intended for use in removing food which may become stuck in a person’s throat” (Health & Saf. Code, § 27637, subd. (a)). The statute also provides that “Nothing in this section shall impose any obligation on any person to remove, assist in removing, or attempt to remove food which has become stuck in another person’s throat. In any action for damages for personal injuries or wrongful death, neither the proprietor nor any person who removes, assists in removing, or attempts to remove such food in accordance with instructions adopted by the department shall be liable for any civil damages as a result of any acts or omissions by such person in rendering emergency assistance.” (Health & Saf. Code, § 27637, subd. (d).)

9 A number of decisions have deemed it appropriate to apply the doctrine of res ipsa loquitur, where the instrumentality producing the injury was in the exclusive control of the defendant and the injury would not have occurred if due care had been exercised. We express no opinion on whether the doctrine applies in this case and leave it to the lower courts to determine whether, on the facts of the particular case, the doctrine should apply.