Holiday Season Food Law (Part II): Careful with that salmon (salmon?)...Santa.

(This is the second post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See part I here).

There are certain "non-traditional" movies I associate with Christmas, and I love this scene from "Trading Places" where Dan Akroyd plays a down and out Santa Claus who is swiping holiday goodies from a Christmas party.  My favorite part is when he steals a nice piece of salmon, stuffs it into his jacket, and then pulls it out later to feast on it while riding a bus.

The question is, what happens if -- when he bites into that salmony, beard-encrusted goodness -- he bites down on some hard substance or object and breaks a tooth?  Let's discuss this "bucket" of cases.

♪ ♫  On the second day of Christmas, my true love gave to me...A CHRISTMAS COOKIE WITH A TACK IN IT! ♪ ♫

Most of these cases involve alleged negligence by the manufacturer in either the manufacture or post-manufacture inspection of the food product.  The earliest case I have found in this group of cases is Delk v. Liggett & Myers Tobacco Co., 180 S.C. 436, 186 S.E. 383 (1936). 

Delk involved a man who bought some chewing tobacco and, after putting some in his mouth, bit down on a carpet tack.  (Ouch).  The nerve of the tooth died, the tooth became infected, and he could not consume anything but liquids for ten days.  186 S.E. at 348. Plaintiff brought a lawsuit, and the defendant moved at trial for non-suit based on (1) absence of a contractual relationship with the plaintiff, and (2) lack of proof of negligence.  Id. at 385.  The motions were denied and the plaintiff won $500.  Id. The defendant appealed based on the same aforementioned grounds, as well as an erroneous charge by the judge.  Id. With regard to the privity of contract issue, the court held the trial court was not in error because chewing tobacco qualifies as a "food," and liability will exist regardless of privity of contract.  Id. at 385-86. However, the court agreed with the defendant that there was lack of proof of negligence.

It is true that negligence may be established by circumstantial evidence as well as by positive evidence; but it is also a well settled precept founded upon the soundest principles of justice that a verdict must be supported by the evidence and not based upon conjecture, speculation, and surmise. Has [plaintiff] adduced testimony, positive or circumstantial, sufficient to show negligence on the part of appellant? We think not. The plug of tobacco was carried around in his pocket until he had taken four or five chews of same, and there was no proof of an impression made by the tack on or in said plug to show that when the tobacco was pressed the tack became a part of said plug. It is entirely possible that this tack could have become imbedded in this plug during the time that it was in possession of the jobber, retailer, or respondent.

Id. at 387.  On this basis, the court remanded the case to the trial court with instructions to enter judgment in favor of the defendant.  Id. at 388.  Although the defendant's third ground for appeal (the erroneous jury charge) was largely moot, the court found the charge was not erroneous in light of its determination that tobacco qualified as a "food."  Id.

Delk is somewhat of an anomaly in this line of cases because it involved tobacco.  This is significant because although the court believed tobacco was "food" for purposes of its negligence analysis, it did not believe that tobacco should be classified as "food" for purposes of the Pure Food and Drug Act in effect at the time.  Id. at 386.  This is a significant distinction because subsequent cases involving more common food products involve an additional statutory line of analysis when assessing negligence.

For example, both Irick v. Peoples Baking Co., 187 S.C. 238, 196 S.E. 887 (1938) and McKenzie v. Peoples Baking Co., 205 S.C. 149, 31 S.E.2d 154 (1944) involved plaintiffs who bit into cakes that had glass (Irick) and a piece of steel (McKenzie) embedded in them.  At trial, the defendants successfully moved for non-suit based on a lack of evidence of common law negligence (which was granted), and the plaintiffs appealed.  In both cases, the appellate courts reversed on grounds that the Pure Food and Drug Act in effect at the time applied to the food products, that presence of the foreign material constituted violations of same, and that a violation constituted per se negligence that required the cases to be submitted to the jury.  As stated by the McKenzie court:

[I]nclusion of a harmful foreign substance in cake prepared for human consumption (food) is a violation of our Pure Food Statute and negligence per se, and that Irick's case, supra, was correctly decided and should be adhered to, and it is. Nonsuit should not have been granted upon a contrary conclusion, as it was. Assuming that the facts in evidence, other than that involved in the appeal, warranted submission of the case to the jury (and the case was argued and heard upon such assumption), it should have been so submitted.

However, as this law continued to evolve, proof of a statutory violation was not an automatic "slam dunk" for a plaintiff.  In Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976), the plaintiff bit into something hard in a pack of Cracker Jacks and brought suit for negligent manufacture and violation of the applicable Food and Cosmetic Act at the time.  At trial, the court granted the defendant's motion for non-suit because there was no proof of negligence at common law or under the applicable Act.  Id. at 425, 229 S.E.2d at 263.  On appeal, the plaintiff admitted there was no proof of negligence but (again) cited to violation of the Act as per se negligence.  Id.  In this case, the court affirmed the trial court based on the evidence. 

In brief, the testimony presented by appellant was simply that, while driving and eating popcorn, she bit a hard unidentified object or substance, causing pain, and subsequently she found that the tooth was cracked. The dentist could not determine from an examination of the tooth what caused it to crack but, based upon the statements of appellant, he was of the opinion that the break was caused by the tooth striking some hard object. It was inferable that no foreign object could have gotten into the box of popcorn after it was opened by appellant.

Id. at 426, 229 S.C. at 264.  Based on this lack of evidence, there was no testimony to show that plaintiff's injury was proximately caused by an adulteration of the Cracker Jacks.  Id. at 427, 229 S.C. at 264.

Finally, Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (1998) involved a plaintiff who bit into a biscuit that appeared to have gravel or rock in it.  She sued for negligence, breach of warranty and strict liability and was awarded $60,000 (against Sara Lee) and $7,600 (against co-defendant Western Steer).  Id. at 463, 502 S.E.2d at 923-24.  Sara Lee appealed and argued that the plaintiff received a triple recovery against it on all three causes of action and should have been forced to elect remedies.  Id. at 463-64, 502 S.E.2d at 924.  The court affirmed the trial court because (1) Sara Lee did not object to the jury charges or verdict form, and (2) no election of remedies was required because only one recovery was sought and obtained.  Id. at 464, 502 S.E.2d at 924.  Sara Lee also argued that the trial court erred in denying its motion for directed verdict and judgment notwithstanding the verdict on the negligence cause of action. Id. The court also affirmed the trial court in reviewing this argument based on the "two issue" rule.  Id. "Pursuant to that rule, when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the appellate court will affirm unless the appellant appeals all causes of action."  Id.  Sara Lee did not appeal the breach of warranty or strict liability issues, and the verdict was supportable by these causes of action.  Id. at 464-65, 502 S.E.2d at 924.  In a footnote, the court said that even if the "two issue" rule did not apply, it would still affirm because Sara Lee offered no evidence that the hard substance was natural to the ingredients of the finished product, and the jury could infer a lack of due care from the rock/gravel's presence.  Id. at 465, 502 S.E.2d at 924.

Wow...all of that was a mouthful...of carpet tacks, glass, steel, and rock/gravel. 

Happy Holidays!

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