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Goodman v. Wenco Foods Inc.12/18/1992
EXUM, Chief Justice.
The plaintiff was injured when he bit down on a small bone in a hamburger sandwich purchased at Wendy's Old Fashioned Hamburgers. He brought actions in negligence and breach of the implied warranty of merchantability against Wenco Management, Wenco Foods, Inc., d/b/a Wendy's Old Fashioned Hamburgers [hereinafter Wendy's], and against Greensboro Meat Supply Co. [hereinafter GMSC], which allegedly supplied the hamburger meat for that Wendy's restaurant.
The trial court granted summary judgment on both claims for defendant GMSC, but allowed plaintiff's action against Wendy's to go to trial. At trial, the trial court allowed Wendy's' motion for directed verdict on both claims at the close of plaintiff's evidence.
In its majority opinion as reported the Court of Appeals reversed both the directed verdict for Wendy's and summary judgment for GMSC. A majority of the Court of Appeals panel (Judges Arnold and Greene) concluded that plaintiff's implied warranty of merchantability claims should have survived Wendy's' motion for a directed verdict and GMSC's motion for summary judgment. Only Judge Greene, writing the principal opinion for the panel, concluded that the negligence claims should also have survived these motions by defendants. Only Chief Judge Hedrick concluded that the trial court correctly entered summary judgment for GMSC and directed verdict for Wendy's on both the warranty and negligence claims.
We affirm the Court of Appeals' decision affirming the directed verdict on plaintiff's negligence claim against Wendy's. We affirm the Court of Appeals decision reversing directed verdict for Wendy's and summary judgment for GMSC on plaintiff's breach of the implied warranty of merchantability claims. We conclude, however, that the majority of the Court of Appeals erroneously affirmed summary judgment for GMSC as to plaintiff's negligence claim; we therefore reverse this decision. The result is that the case is remanded for trial on plaintiff's implied warranty of merchantability claims against both defendants and on plaintiff's negligence claim against GMSC.
I. WENDY'S
At trial, only plaintiff offered evidence. Plaintiff testified that on 28 October 1983, he and an employee stopped for lunch at the Hillsborough Wendy's restaurant. Plaintiff ordered a double hamburger and had eaten about half of it when he bit down and felt immediate pain in his lower jaw. Plaintiff took from his mouth the hamburger, a piece of bone that did not come from his mouth, and pieces of teeth. Plaintiff described the piece of bone as triangular, one-sixteenth- to one-quarter-inch thick, one-half-inch long and tapering from one-quarter inch at its base to a point. He indicated that, as far as he knew, the bone was a cow bone. It was about the size of his small fingernail, thick on one side, shaved down to a point on the other, and too small to be flexible. Plaintiff stated the bite containing the bone was mostly meat and that the bone had been in the meat, but he admitted it was possible the bone could have been in any of the condiments or in the bun. Plaintiff's luncheon companion testified he witnessed the incident and saw plaintiff show the bone to the restaurant manager. He noted plaintiff missed at least one day of work. Plaintiff's wife testified as to the extent and intensity of her husband's pain resulting from the broken teeth, and plaintiff's dentist and endodontist testified as to the dental damage, their work on his teeth over several months, and the cost of their services.
Plaintiff also introduced into evidence a copy of Wendy's' grinding specifications for its meat suppliers, which require that chopped meat be
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