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Goodman v. Wenco Foods Inc.12/18/1992
narily rendered it injurious to health." N.C.G.S. § 106-129 (1988).
But the Act provides no standard by which to comply with that duty. Such a standard of care would presumably be imposed, for example, by state regulations, promulgated pursuant to the Act, that specify the tolerance for bone fragments in ground meat.
A standard of care is also imposed under the law of negligence:
A keeper of a public eating place, engaged in the business of serving food to customers, is bound to use due care and see that the food served to his customers, at his place of business, is fit for human consumption and may be eaten without its causing injury , and for an injury caused by negligence in failing to observe this duty to his patrons such keeper is liable.
36A C.J.S. Food § 61, at 914 (1961). See also Loyacano v. Continental Insurance Co., 283 So. 2d at 305 ("the reasonable expectation of the ordinary consumer is that the processor and vendor of ground meat would exercise the same care as that which a reasonably prudent man skilled in the art of meat handling would exercise in the removal of bones from the meat").
The question whether the verdict was properly directed for Wendy's on plaintiff's negligence claim rests upon the inquiry whether there was evidence in the record from which a jury might determine that Wendy's breached this standard of due care, proximately resulting in plaintiff's injury .
Evidence presented at trial indicated that Wendy's had exercised due care in the preparation of its hamburgers. Wendy's' grinding specifications stated that "acceptable" preparation of its meat was to chop beef free of "all bones" and force it through a one-eighth-inch plate. The specifications stated, however, that the "preferred" preparation was to force such meat through two plates -- initially a one-half-inch or three-eighths-inch plate, then a one-eighth-inch plate. Jake Leggett, the owner of GMSC, testified that the grinding process employed for hamburger supplied to Wendy's forces the chopped meat through a three-eighth-inch-diameter hole, then re-chopped by being forced through rapidly spinning knives, then through one-eighth-inch-diameter holes. Mr. Leggett added that
GMSC also uses a "bone collector" device, not required by either North Carolina Department of Agriculture nor U.S.D.A. Regulations, "intended to remove from the meat a lot of the bone and gristle which remains after the grinding process."
That Wendy's took precautions to ascertain the meat used in its hamburger was reliably free of injurious bone fragments is uncontradicted in the record. It is not contradicted by the mere presence of bone fragment as small as the one described by plaintiff. The presence of such a small fragment, standing alone, creates no inference that Wendy's was negligent in its inspection of the hamburger it served to plaintiff. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 375, 53 S.E.2d 718, 722 (1949). "To permit an inference of ordinary negligence from the mere presence of a particle of bone in a [hamburger] sandwich would place the seller in a position of a virtual insurer of the perfection of the food." Id., 53 S.E.2d 718. Even in an action based on breach of implied warranty, the restaurateur is not expected to serve a perfect product, but one within the consumer's "reasonable expectations" for wholesome food.
The defendant was not required, in the exercise of ordinary care, to discover and eliminate every single particle of bone from the . . . sandwich, and the mere presence of a particle of bone in the sandwich does not authorize an inference of negligence in preparing an
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