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Bones in Fish not like Frog in the Soda Can (NY)

July 21, 2017

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<p style="text-align: justify;">The media loves to report on stories involving dead animals or weird objects found in food, like a frog in a can of soda or a finger in a frozen custard container.  In New York, the standard for recovery in such a case involves the “reasonable expectation doctrine," which provides that a plaintiff can recover for breach of the implied warranty of fitness if it is found that the natural substance was not reasonably anticipated to be in the food as served.</p>
<p style="text-align: justify;">In <a href="http://www.nycourts.gov/reporter/3dseries/2017/2017_04544.htm,"><em>Amiano v. Greenwich Village Fish Co</em></a>.,  the plaintiff was at a seafood restaurant and was eating a filet of flounder when she choked on a fish bone. She sued the restaurant for damages for the injuries she allegedly sustained.  The restaurant moved for summary judgment under the reasonable expectation doctrine arguing that bones are to be reasonably expected in fish, even if filleted. But the trial court denied the motion by the restaurant, finding a question of fact as to whether the fish was filleted properly and as to the size of the bone the plaintiff choked on. Furthermore, the court found the question of whether the plaintiff herself failed to take care in eating the fish was a question for the jury.</p>
<p style="text-align: justify;">The defendant restaurant appealed, and the First Department reversed the trial court decision and awarded summary judgment to the restaurant. The appellate court held that Plaintiff's negligence claim should have been dismissed under the "reasonable expectation” doctrine, since the nearly one-inch bone on which she choked was not a “harmful substance” that a consumer “would not ordinarily anticipate” when eating fish.</p>
Thanks to Jorgelina Foglietta for her contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> for more information.

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