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Florida law applies “reasonable expectation” test in determining if restaurant may be held negligent for alleged “harmful substance” served a patron.

April 1, 2017
Pablo Dellatorre v. Buca, Inc., 42 Fla. L. Weekly D289 (Fla. 4th DCA 2017)

The Fourth District Court of Appeals reversed and remanded a trial court’s entry of summary judgment in favor of the defendant restaurant. The plaintiff alleged that, while swallowing the last bite of his pasta dish served with mussels and leaving the plate almost empty, he felt a cutting sensation in his throat and chest. The plaintiff was rushed to the hospital. During emergency surgery, the medical staff extracted a broken shell approximately “one-and-a-half to two inches long.” The plaintiff testified that he was not expecting to find broken mussel shell in his meal and he did not break any mussel shells while eating his meal. The restaurant’s representative denied it could have served a broken mussel shell as the chefs visually inspect each mussel shell to ensure it is intact before it is added to the pasta dish.

The Appellate Court explained that Florida law applies a “reasonable expectation” test to determine if a restaurant can be held negligent for an alleged “harmful substance” it serves a patron. The test is not whether the alleged “harmful substance” is an ingredient of the food dish prior to preparation, but whether the consumer reasonably expected the “harmful substance” in the food as served. The Appellate Court explained that as a general rule application of the “reasonable expectation” test requires resolution of a material issue of fact. The Appellate Court determined that while a restaurant patron would reasonably expect a whole mussel shell in his dish, there was an issue of fact of whether he was served a broken mussel shell and whether it was hidden in the pasta dish.

As a general practice tip, a good starting point to determine if a consumer reasonably expected a “harmful substance” in the meal served is to review the description of the meal in the menu. If the “harmful substance” is not contained in the description of the meal in the menu, a reasonable consumer may not expect it in the meal as served.

 

Case Law Alerts, 2nd Quarter, April 2017

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