Taking a Bite Out of the Foreign-Natural Rule in New York

Rudloff v. Wendy's Restaurants of Rochester, Inc., 2006 N.Y. Misc. LEXIS 1502 (N.Y. Civ. Ct. June 8, 2006)

A diner at a Wendy's restaurant broke a tooth on a double cheeseburger and filed suit for personal injuries sustained in the occurrence. Because the plaintiff alleged that he had swallowed the offending portion it could not be determined whether the object was 'natural' to beef like bone or gristle, or whether it was 'foreign' such as a piece of metal, or whether it came from the bun, the cheese, or from some other source. The diner sued under theories of strict liability, negligence and implied warranty.

Wendy's moved for summary judgment, alleging that there was no proof of negligence in its preparation of the double cheeseburger and that the plaintiff, not being able to prove whether the object was not natural to a cheeseburger, could not argue a breach of implied warranty.

The court found that although Wendy's could show that they had not negligently prepared the cheeseburger patty, they could not show that they had exercised the same degree of care with respect to assuring that the preformed patties they bought were free of such defects.

Turning to the strict liability assertions, the court found that the plaintiff had met his burden that the patties did not perform as intended.

In discussing the implied warranty claim, the court found reason to visit the 'foreign-natural' rule, holding that the 'foreign-natural' rule was not the proper test for what happened and also that it was not a complete bar to the action.

The court also noted that even had the 'foreign-natural' rule survived the adoption of the Uniform Commercial Code, it was of no avail to Wendy's because the correct measure is what the consumer reasonably expects. The nature of the object and how the food was prepared should be factors but not the sole determinant of liability.