Injured by Objects in Your Food: Waiter, There’s a Nail in My Soufle

A neighbor of mine came to me for help after she fractured her tooth on a pebble that was in a salad she ordered at a local Mexican restaurant. Typically, these cases can be resolved with the insurance company for the restaurant fairly easily, but in this case my neighbor is not litigious and naively thought the restaurant would just voluntarily pay for the damage the rock caused. Two years later with the statute of limitations about to run out, she finally came to me with over $9,000.00 in dental bills for a root canal and a new implant saying the insurer would not respond.


So, the question is, what are your rights when you break a tooth or swallow a foreign object in a restaurant? First of all, follow the Golden Rule, do unto others… Do not run out and get a lawyer just because you found a cockroach in your food. Gross…yes…a lawsuit….no. Litigation should be reserved for serious cases involving larger dollar amounts. If the restaurant has harmless foreign objects in the food, tell your friends and don’t go back.

If the foreign object is harmful, that is another story. A good example would be the case I handled as a Georgia insurance defense lawyer years ago. We represented a fast food chain where an employee’s band-aid had landed in a taco served to a customer. Standing alone, that is gross but not something to sue over. This band-aid had Hepatitis C on it and the patron contracted the disease. That made it a very big deal.

Other examples of serious cases would be salmonella and E. Colli food poisoning cases or the ingestion of pieces of metal causing GI tract damage.

Georgia has two laws that protect the consumer; the Georgia Food Act and the Implied Warranty of Merchantibility
The Georgia Food Act, OCGA §51-1-23, says:

“Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.”

There is also an Implied Warranty of Merchantability, OCGA §11-2-314. that covers any food sold:

“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 Code section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.”

Basically, the legislature has given the consumer two keys with which to make a fair recovery if they truly suffer an injury. Do we want everyone filing lawsuits if they get food poisoning and spend the night vomiting? Probably not. However when you have a $9,000.00 dental bill to repair the damage caused by a rock in a salad, the the restaurant should pay the bill for the repair.

Bottom line; if the foreign object is no big deal, deal with it using a yelp or kudzu review. If it causes a serious injury you might want to talk with an Atlanta injury lawyer who handles food related injuries.

For an interesting read on how the Court of Appeals views gross things in your food, read on. Incidentally, even though the case was allowed to proceed to the jury I have to wonder what the hell the lawyer was thinking filing suit on a case like this to begin with. No harm, no foul is a good rule to live by.

Read
CHAMBLEY et al.
v.
APPLE RESTAURANTS, INC.