O'Brien v. Dora Ferguson Catering, Inc.

1988 Mass. App. Div. 150
CourtMassachusetts District Court, Appellate Division
DecidedSeptember 8, 1988
StatusPublished
Cited by2 cases

This text of 1988 Mass. App. Div. 150 (O'Brien v. Dora Ferguson Catering, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. Dora Ferguson Catering, Inc., 1988 Mass. App. Div. 150 (Mass. Ct. App. 1988).

Opinion

Dolan, J.

This report involves an action in which the plaintiff, Donna O’Brien, seeks to recover damages on theories of breach of warranty and negligence for injuries she sustained while eating a chicken pie purchased from the defendant and taken home for consumption.2

Briefly stated, the plaintiff, while at home eating the chicken pie, felt a sharp object in the throat and experienced breathing difficulty. She was taken to the hospital where the object was surgically removed. The object was identified as á bone.

The trial judge found for the plaintiff, holding the defendant liable for both [151]*151breach of warranty and negligence. He submitted the following findings of fact:

I find that the defendant sold a chicken pie to the plaintiff; that said pie contained a foreign body, to wit; a jagged bone the approximate size of a dime. The defendant manufactured the said pie. I further find the defendant negligently left the bone in the pie and that the pie was unmerchantable. Customers do not expect to find bones in their chicken pies.

The defendant, on this appeal, claims error in an evidential ruling by the trial judge and in the trial judge’s denial of certain requests for rulings of law relating to the sufficiency of evidence.

The defendant’s first contention is that the trial judge erred in admitting Exhibit 2 into evidence, i.e. a small bottle containing a bone the approximate size of a dime. The plaintiff introduced this exhibit as the object which was surgically removed from her throat.

The defendant argues that the object should not have been admitted as the plaintiff did not lay the proper foundation for its admission. ‘‘[W]hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged.” McCORMICK ON EVIDENCE §212, at 527 (2d ed. 1972). See also P. LIACOS, HANDBOOK OF MASSACHUSETTS EVIDENCE 394 (5th ed. 1981); Nesci v. Angelo, 249 Mass. 508, 510-11 (1924); and Irwin v. Ware, 392 Mass. 745, 750-51 (1984). The defendant does not appear to be challenging the latter requirement of this two-pronged test, otherwise known as the “chain of custody” doctrine. Rather, the thrust of the defendant’s objection is that the plaintiff failed to establish that Exhibit 2 was actually the object removed from her throat.

The hospital record that was introduced into evidence indicates that a bone was surgically removed from the plaintiffs throat. The surgeon did not testify at trial, and the plaintiff did not see the bone enter or exit from her throat. The plaintiff did testify that, following the operation, Exhibit 2 was delivered to her by her surgeon in her hospital room. Thus, it appears that the basis for the admission of Exhibit 2 was founded on an inference by the trial judge that the bone shown to the plaintiff was in fact the bone removed from her throat.

A trier of fact has the right to draw reasonable inferences. Johnson v. Angel, 23 Mass. App. Dec. 19, 23 (1961); Allen v. Essanee, Inc., 309 Mass. 1, 7 (1941). “[IInferences to be drawn in a given matter depend on facts, circumstances, and teachings of experience.” Massachusetts General Hospital v. City of Chelsea, 23 Mass. App. Dec. 58, 65 (1961). We are of the opinion that in the circumstances of this instant case the trial judge's inference was reasonable. Consequently, we find that the trial judge did not err in admitting Exhibit 2 into evidence.

The defendant also claims error in the trial judge’s denial of a request for a ruling that the evidence did not warrant a finding for the plaintiff on her breach of warranty claim. Thus, we must examine the sufficiency of the evidence presented as to the alleged breach of warranty.

Under G. L. c. 106, § 2-314, a seller of food impliedly warrants that the food is fit to be eaten. In this case, the trial judge found that there was a bone in the chicken pie sold to the plaintiff by the defendant. There was no specific finding as to whether the bone was a chicken bone or a non-chicken bone. Therefore, the question before us is whether the presence of a bone of any type in the chicken pie sold by the defendant rendered the pie unfit to be eaten.

The landmark case in the area of breach of warranty due to bones in food is [152]*152Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421 (1964). In that case, the court found that a fish bone in fish chowder does not constitute a breach of warranty since consumers should reasonably expect to find fish bones in fish chowder. The court examined several age-old recipes for fish chowder, none of which called for the removal of bones from the fish. The court stated: “[w]e should be prepared to cope with the hazards of fish bones, the occasional presence of which in chowders is, it seems to us, to be anticipated, and which, in light of a hallowed tradition, do not impair their fitness or merchantability.” Webster, 347 Mass. at 426.

The court in Foss v. Carpenter Enterprises, Inc., 1985 Mass. App. Div. 82, 84 (1985) also applied the “reasonable expectation” doctrine in finding that bones in a filet of haddock do not constitute a breach of warranty. However, the Foss court reached the same result by also applying the “foreign-natural” doctrine which first emerged in Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (1936). That doctrine states: “ ‘[bJones 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.’ ” Foss, 1985 Mass. App. div. at 84 [quoting Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 682, 59 P.2d 144, 148 (1936)]. Thus, a fish bone in a fish dish would not constitute a breach of warranty under the “foreign-natural” doctrine.

There is some argument as to whether the “foreign-natural” doctrine is applicable in Massachusetts. The Supreme Judicial Court did not apply the doctrine in Webster. If it had, the opinion would certainly have been more' succinct since fish bones are definitely not foreign to fish. The “reasonable expectation" test appears to us to be the preferred doctrine, and we reject a test that would automatically find no breach of implied warranty if a chicken pie contained a chicken bone, but would find a breach of warranty if a chicken pie contained a non-chicken bone.

The trial judge in the instant case seems to have applied the “reasonable expectation” test when he stated “ [c] ustomers do not expect to find bones in their chicken pies.” His characterization of the bone as a “foreign body” may be ambiguous since there was no finding as to whether or not the bone was a chicken bone or non-chicken bone. However, liability for breach of warranty was based on the “reasonable expectation” test which does not require establishing the nature of the bone. The test is whether or not a consumer would reasonably expect to find a bone in her chicken pie. Foss, 1985 Mass. App. Div. at 84.

We note the emphasis placed on fish chowder recipes by the court in Webster. Those recipes did not call for the removal of fish bones.

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Bluebook (online)
1988 Mass. App. Div. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-dora-ferguson-catering-inc-massdistctapp-1988.