822 F.Supp.2d 406 (2011)

[409] Christina Maria Killerlane, Law Offices of James J. Killerlane, White Plains, NY, for Plaintiff.

Kenneth A. Schoen, Scott H. Goldstein, Bonner, Kiernan, Trebach & Criciata, New York, NY, for Defendants.

OPINION AND ORDER

SEIBEL, District Judge.

Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 19), and Defendants' unopposed Motion for Judicial Notice, (Doc. 22). For the reasons stated below Defendants' Motion for Judicial Notice is GRANTED and Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. Background

The following facts are assumed to be true for purposes of the motion.

Plaintiff Lee Porrazzo consumed approximately ten six-ounce cans of tuna fish per week from approximately January 2006 to October 2008. (Am. Compl. ¶ 1.)^[1] The tuna fish was canned by Defendant Bumble Bee Foods, LLC ("Bumble Bee"). (Id.) Plaintiff purchased this tuna fish, which was frequently on sale, from Defendant Stop & Shop Supermarket Company ("Stop & Shop"). (Id.) During this time Bumble Bee promoted its tuna fish as an "excellent and safe source of high quality protein, vitamins, minerals and Omega-3 fatty acids, as well as being low in saturated fats and carbohydrates[,] and touted its product as being `heart healthy.'" (Id. ¶ 3.) The Bumble Bee tuna fish did not provide any warning that it contained mercury, "an odorless, colorless, tasteless, poisonous, heavy metal." (Id. ¶ 4.)

At some point between January 2006 and October 2008, Plaintiff began to experience, two to three times per week, "episodes of chest pains, heart palpitations, sweatiness, dizziness, and lightheadedness," which led him to believe that he had a heart condition. (Id. ¶ 5.) Plaintiff sought medical attention and underwent numerous tests to understand the cause of his symptoms, but none of these tests provided an answer. (Id. ¶ 5.) On April 14, 2006, Plaintiff went to the White Plains Hospital Emergency Room because he believed (incorrectly) that he was having a heart attack. (Id. ¶ 6.)

On or about October 1, 2008, Plaintiff's primary care practitioner ordered a heavy metals blood test, which showed that there was an elevated level of mercury in Plaintiff's blood. (Id. ¶ 7.) Specifically, Plaintiff's blood mercury level was 23 mcg/L as opposed to the less than 10 mcg/L, which is normal. (Id.) On the same date, the New York State Department of Health contacted Plaintiff by telephone, advised him that he had a dangerous level of mercury in his blood, asked him questions, filled out a questionnaire, and instructed him to stop eating tuna fish. (Id. ¶ 8.) Plaintiff stopped eating tuna fish, and a blood test on November 4, 2008, revealed that his mercury levels had returned to normal. (Id. ¶ 9.) Plaintiff no longer suffered the heart attack-like symptoms previously [410] described, but he alleges that he "remains worried today about what effects the mercury has had on his health." (Id.)

Plaintiff filed the Amended Complaint on August 31, 2010, alleging claims for: (1) breach of implied warranty of merchantability and fitness for consumption; (2) failure to warn under both strict liability and negligence theories; (3) "emotional distress;" (4) violations of New York State Agriculture and Markets Law; and (5) violations of New York State General Business Law. (Doc. 9.)

II. Legal Standards

A. Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,. . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950.

In considering whether a complaint states a claim upon which relief can be granted, the court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determine whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not `show[n]'—`that the pleader is entitled to relief'" Id. (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).

B. Consideration of Documents Outside the Pleadings

When deciding a motion to dismiss, the Court is entitled to consider the following:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d [411] 147, 152-53 (2d Cir.2002). A document is considered "integral" to the complaint where the plaintiff has "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers, 282 F.3d at 153 (emphasis omitted). Such reliance "is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (integral documents may include documents partially quoted in complaint or on which plaintiff relied in drafting complaint). If a document outside of the complaint is to form the basis for dismissal, however, two requirements must be met in addition to the requirement that the document be "integral" to the complaint: (1) "it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document," and (2) "[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." Faulkner, 463 F.3d at 134.

III. Discussion

A. Documents the Court May Consider

Before addressing the merits of Defendants' Motion to Dismiss, I must first address which documents may properly be considered on this motion. Defendants' request that I take judicial notice of the following documents of the United States Food and Drug Administration ("FDA"):

• "What You Need to Know About Mercury in Fish and Shellfish," published by the United States Department of Health and Human Services and the United States Environmental Protection Agency, (Goldstein Cert. Ex. A)^[2];

• "Backgrounder for the 2004 FDA/EPA Consumer Advisory: What You Need to Know About Mercury in Fish and Shellfish," published by the United States Food and Drug Administration and the United States Environmental Protection Agency, (Goldstein Cert. Ex. B);

• Letter from Lester M. Crawford, D.V.M., Ph.D., United States Commissioner of Food and Drugs, to Bill Lockeyer, Attorney General of the State of California, dated August 12, 2005, re: a suit filed on June 21, 2004 in San Francisco Superior Court, (Goldstein Cert. Ex. C);

• Section 540.600 of the Federal Food and Drug Administration's Compliance Policy Guide, which allows up to one part of methyl mercury per million non-mercury parts of the edible portion of seafood, (Goldstein Cert. Ex. D);

• FDA Letter Responding to Martek Petition, dated September 8, 2004, (Goldstein Cert. Ex. E).

"Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is `either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably[] questioned.'" U.S. v. Bryant, 402 Fed.Appx. 543, 545 (2d Cir.2010). Further, it is well-established that courts may take judicial notice of publicly available documents on a motion to dismiss. See Byrd v. City of N.Y., No. 04-CV-1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) ("[M]aterial that is a matter of public record may be considered in a motion to dismiss."); Blue Tree Hotels Inv. (Can.) v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d [412] Cir.2004) (courts can "look to public records, including complaints filed in state court, in deciding a motion to dismiss"); In re Yukos Oil Co. Secs. Litig., No. 04-CV-5243, 2006 WL 3026024, at *21 (S.D.N.Y. Oct. 25, 2006) ("Court may take judicial notices of [published] articles on a motion to dismiss without transforming it into a motion for summary judgment") (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991)). "In the motion to dismiss context, . . . a court should generally take judicial notice `to determine what statements [the documents] contain[] . . . not for the truth of the matters asserted.'" Schubert v. City of Rye, 775 F.Supp.2d 689, 698 (S.D.N.Y.2011) (alterations in original) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991)). Because the documents of which Defendants request I take judicial notice are all publicly available on the FDA website, this unopposed motion is granted and I take judicial notice of these documents for the fact that the statements were made, not for their truth.

B. Federal Preemption

Defendants contend that Plaintiff's state law claims must be dismissed because they are "preempted by a `pervasive federal regulatory scheme implemented by and through the FDA' which specifically addresses and regulates the extent to which the Defendants could distribute canned tuna containing legally permitted levels of methylmercury and whether it was required to warn consumers of trace amounts." (Defs.' Mem. 25-26.)^[3] In particular, Defendants assert that "the FDA has already extensively regulated this arena by establishing the maximum concentration of methylmercury for a can of tuna to be considered fit for consumption, issuing advisories to target groups and implementing a comprehensive education campaign while expressly rejecting the notion of and/or need for warning the general population of the presence of methylmercury in tuna." (Id. at 29-30.)

The Supremacy Clause, U.S. Const., art. VI, cl. 2, "invalidates state laws that `interfere with, or are contrary to,' federal law." Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). "[S]tate laws can be pre-empted by federal regulations as well as by federal statutes," id. at 713, 105 S.Ct. 2371; see Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (agency "regulations have no less pre-emptive effect than federal statutes"), at least where the regulations "are properly adopted in accordance with statutory authorization," City of N.Y. v. FCC, 486 U.S. 57, 63, 108 S.Ct. 1637, 100 L.Ed.2d 48 (1988). Preemption inquiries are "guided by the rule that [t]he purpose of Congress is the ultimate touchstone in every pre-emption case." Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (alteration in original and internal quotation marks omitted). In addressing questions of preemption, courts are to begin their analysis "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 77, 129 S.Ct. 538 (alteration in original). This assumption "applies with particular force when Congress has legislated in a field traditionally occupied by the States." Id.

[413] In Fellner v. Tri-Union Seafoods, L.L.C., the Third Circuit addressed a case almost identical to this one and found that the plaintiff's state law claims were not preempted. 539 F.3d 237 (3d Cir.2008). Specifically, in Fellner the plaintiff alleged that her diet consisted almost exclusively of the defendant's canned tuna products for a period of five years, that those tuna products contained methylmercury, and that due to defendant's failure to warn of the dangers of methylmercury, plaintiff contracted mercury poisoning and suffered physical and emotional injuries. As in the case at bar, the Fellner defendant argued that Plaintiff's state law claims were preempted by federal law. The Third Circuit disagreed:

This is a situation in which the FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect. Fellner's lawsuit does not conflict with the FDA's "regulatory scheme" for the risks posed by mercury in fish or the warnings appropriate for that risk because the FDA simply has not regulated the matter. Fellner's duty-to-warn claim does not conflict with an FDA determination deliberately to forego warnings because the FDA took no action to preclude state warnings—at least, no binding action via ordinary regulatory procedures . . . . Finally, Fellner's lawsuit does not conflict with the FDCA's food misbranding provision or the FDA's actions thereunder because the FDA has not exercised its misbranding authority under the FDCA with respect to methylmercury warnings for fish.

Fellner, 539 F.3d at 256.

As far as this Court is aware, since the time of the Fellner decision the FDA has promulgated no new regulations with respect to methylmercury in tuna. Moreover, the Fellner court had before it the same supporting documents that were submitted to me on this motion—namely, the five documents of which I have been asked to take judicial notice.^[4]

Although I am not bound by the Fellner Court's decision, I find its reasoning and approach to this issue persuasive. Thus, for substantially the same reasons cited by the Fellner court, I decline to find that Plaintiff's state law claims here are preempted by a pervasive federal regulatory scheme implemented by and through the FDA.^[5]

[414] C. Proximate Cause

Defendants next assert that all of Plaintiff's claims must be dismissed because Plaintiff fails to allege that he sustained any injuries that were proximately caused by his consumption of Defendants' canned tuna fish. (Defs.' Mem. at 14.) Specifically, Defendants assert that despite Plaintiff's consultations "with numerous physicians. . . there was no diagnosis of any specific ailment," and although Plaintiff claims that he remains worried about what effects the mercury has had on his health, "he has not alleged the existence of any actual ill health effects caused by consumption of tuna." (Id.) Defendants also assert that Plaintiff has not alleged "that the elevated mercury level in his blood was proximately caused by his consumption of Bumble Bee canned tuna fish." (Defs.' Reply at 8.)^[6]

"Under New York law, [i]t is well settled that, whether [an] action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury." Viscusi v. P & G-Clairol, Inc., 346 Fed. Appx. 715, 716 (2d Cir.2009) (alterations in original and internal quotation marks omitted); see Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 82 (S.D.N.Y. 2001) ("To make out a prima facie case for negligence in New York, a plaintiff must show (1) that the manufacturer owed plaintiff a duty to exercise reasonable care; (2) a breach of that duty by failure to use reasonable care so that a product is rendered defective, i.e. reasonably certain to be dangerous; (3) that the defect was the proximate cause of the plaintiff's injury; and (4) loss or damage. . . . Strict liability in New York requires a showing that (1) a defective product (2) caused plaintiff's injury."); Fahey v. A.O. Smith Corp., 77 A.D.3d 612, 908 N.Y.S.2d 719, 723 (2d Dep't 2010) ("Whether an action is pleaded in strict products liability, breach of warranty, or negligence, the plaintiffs must prove that the alleged defect is a substantial cause of the events which produced the injury.").

Defendants' contention that Plaintiff has not alleged that he suffered injury [415] is unavailing. While Plaintiff has not conclusively proven that he sustained long-term physical injuries from his ingestion of mercury, he has pleaded that he suffered from an extremely elevated blood mercury level, and a series of heart attack-like symptoms including episodes of chest pains, heart palpitations, sweatiness, and dizziness and lightheadedness, all of which constitute injury. (Am. Compl. ¶¶ 5, 6, 23, 25, 39, 41, 44.). See Vamos v. Coca-Cola Bottling Co., 165 Misc.2d 388, 627 N.Y.S.2d 265, 270-71 (N.Y.Civ.Ct.1995) (plaintiff who "had a rapid heartbeat, an upset stomach, was nauseous and sweating. . . and vomited, and . . . had diarrhea" suffered injury for purposes of products liability; "extent and permanency" of plaintiff's injury "relate to the issue of damages," not liability); Mitchell v. Coca-Cola Bottling Co., 11 A.D.2d 579, 200 N.Y.S.2d 478, 479-80 (3d Dep't 1960) (nausea and vomiting resulting from drinking soda containing foreign substance is recoverable injury). Thus, at this stage, Plaintiff's factual allegations are sufficient for me to find it plausible that Plaintiff suffered an injury.

I also find that Plaintiff has plausibly alleged that Defendants' conduct was the proximate cause of his injuries. "Proximate cause requires only some direct relation between the injury asserted and the injurious conduct alleged, and excludes only those link[s] that are too remote, purely contingent, or indirect." Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1192, 179 L.Ed.2d 144 (2011) (internal quotation marks omitted). Moreover, "[t]he issue of proximate cause may be determined as a matter of law [only] where no reasonable person could find causation based on the facts alleged in the complaint." Pelman v. McDonald's Corp., 237 F.Supp.2d 512, 538 (S.D.N.Y.2003) (finding "[n]o reasonable person could find probable cause based on the facts in the Complaint without resorting to `wild speculation'"). Plaintiff asserts that Bumble Bee canned tuna fish was his major source of protein from approximately January 2006 to October 2008, (Am. Compl. ¶ 3), that it contained mercury, (id. ¶ 4), that during that time period he began to experience physical symptoms that led him to believe he had a heart condition, (id. ¶¶ 56), that an October 2008 heavy metals blood test revealed that Plaintiff had a very elevated blood mercury level, (Id. ¶ 8), that Plaintiff was informed of these test results and instructed to stop eating tuna fish, which he did, and that his mercury levels returned to normal and his symptoms abated, within a month thereafter, (id. ¶¶ 8-9). Based on the foregoing, Plaintiff asserts that he was "caused to sustain serious personal injuries" as a result of the defendants' tuna fish products which contained "poisonously high levels of mercury." (Id. ¶ 39.) This timeline provides more than sufficient factual allegations to make it plausible that Plaintiff's ingestion of Defendants' tuna fish was the cause of his injuries.^[7] Viewing the facts in [416] the Amended Complaint in the light most favorable to the Plaintiff, as I must on a motion to dismiss, I find that Plaintiff has sufficiently alleged a direct causal relationship between his consumption of Defendants' tuna fish and his injuries. Defendants' Motion to Dismiss on this basis is therefore denied.

D. Emotional Distress Claim

Defendants next assert that Plaintiff's claims for emotional distress must be dismissed because Plaintiff fails to allege a physical injury which was proximately caused by his consumption of Defendants' canned tuna fish. As described above, I find he has sufficiently pleaded the same. But emotional distress is a prayer for relief, not a separate cause of action, see Brennan v. N.Y. Law Sch., No. 10-CV-0338, 2011 WL 2899154, at *1 (S.D.N.Y. Jul. 11, 2011) (granting Plaintiff's "motion to amend to add a request for emotional distress damages to the prayer for relief"); Galotti v. Town and City of Stamford, No. 96-CV-0224, 1996 WL 684409, at *5 (D.Conn. Nov. 19, 1996) ("Damages for emotional distress may be recovered . . . . However, they should be included as part of the `prayer for relief' section of the complaint. They are not to be pled as a separate count."), and Plaintiff's claims for emotional distress are therefore dismissed. That Plaintiff's claims for emotional distress are dismissed does not, however, preclude Plaintiff's ability to recover emotional distress damages if he is successful on his remaining claims. See Goldberg v. N.Y. Times, 66 A.D.2d 718, 411 N.Y.S.2d 294, 295 (1st Dep't 1978) ("The relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer for damages.").

E. Plaintiff's Product Liability Claims

Defendants also contend that Plaintiff's common law claims—Counts I through IV, for breach of the implied warranties of merchantability and fitness for consumption^[8] and failure to warn—must be dismissed because, among other things: (1) consumers reasonably expect canned tuna fish to contain mercury, which naturally occurs in fish and which Defendants cannot, through ordinary care, remove; and (2) Plaintiff overconsumed the product.

1. Legal Standards

Under New York law, "[a] manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries." Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998). In an action for strict products liability,

a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product regardless of privity, foreseeability or the exercise of due care. The plaintiff need only prove that the product was defective as a result of either a manufacturing flaw, improper design, or a failure to provide adequate warnings regarding the use of the product and that the defect was a substantial factor in bringing about the injury.

Leary ex rel. Debold v. Syracuse Model Neighborhood Corp., 9 Misc.3d 292, 799 [417] N.Y.S.2d 867, 872-73 (Sup.Ct.2005) (internal citations and quotation marks omitted); see Liriano, 92 N.Y.2d at 237, 677 N.Y.S.2d 764, 700 N.E.2d 303 ("A product may be defective when it . . . is not accompanied by adequate warnings . . . .").

A manufacturer may also be held liable under New York law for breach of implied warranty of merchantability when its products are not "fit for the ordinary purposes for which such goods are used." New York U.C.C. § 2-314(2)(c). Specifically, a Plaintiff may recover "upon a showing that [a] product was not minimally safe for its expected purpose," and the focus of a breach of implied warranty inquiry is whether the product meets "the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners." Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-59, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995).

2. Reasonability of Tuna Consumption

Defendants contend that Plaintiff's consumption of its canned tuna fish was unreasonable as a matter of law and that Plaintiff's claims therefore cannot survive. (See Defs.' Mem. at 22 ("[A] diet consisting of nearly 1,500 cans or over 500 lbs of tuna in thirty-three months is undisputedly outside the `intended use' of the product").) Defendants' contention is unavailing. Plaintiff's daily consumption of one to two cans of tuna fish cannot, as a matter of law at this stage, be said to be unreasonable.<sup>[9]</sup> Indeed, Plaintiff was arguably exactly the type of consumer that Defendants desired—a consumer who purchased and consumed their product regularly. Moreover, even if Plaintiff's consumption of such quantities of tuna was unreasonable, Defendants still would be liable for failure to warn if Plaintiff's conduct was foreseeable. See Liriano, 92 N.Y.2d at 240, 677 N.Y.S.2d 764, 700 N.E.2d 303 (manufacturer of defectively designed product liable for failure to warn of dangers resulting from both intended use of product and foreseeable misuses). It is plausibly foreseeable that an individual who is trying to pursue a heart healthy diet could consume one to two cans of canned tuna fish daily, particularly when it was advertised as "low in fat, high in protein and thus, `heart healthy.'" (Pl.'s Mem. 14.)^[10] In any [418] event, the question of whether Plaintiff's daily consumption of tuna fish was indeed unreasonable or unforeseeable is properly left for a jury to determine. See Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850, 852, 552 N.Y.S.2d 914, 552 N.E.2d 162 (1990) (question of "whether the product was defective and reasonably safe for its intended use or a reasonably foreseeable unintended use" is for jury); Heller v. Encore of Hicksville, 53 N.Y.2d 716, 718, 439 N.Y.S.2d 332, 421 N.E.2d 824 (1981) ("It was within the province of the jury to determine" whether defendant failed to warn plaintiff of a "foreseeable" risk); Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (2d Dep't 1992) ("Whether a particular way of misusing a product is reasonably foreseeable, and whether the warnings which accompany a product are adequate to deter such potential misuse, are ordinarily questions for the jury."). Defendants' motion to dismiss on this basis is therefore denied.

3. Reasonable Expectations and Obviousness of Danger

In order to succeed on either a failure to warn claim, or a breach of implied warranty claim, a plaintiff must also establish that the danger inherent in the injurious product was not open and obvious and thus something which a reasonable consumer would ordinarily anticipate finding therein. See Fitzgerald v. Fed. Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67, 69 (2d Dep't 2009) (dismissing plaintiff's strict products liability claim based on defendant's alleged duty and failure to warn of risk of hearing loss from prolonged exposure to sirens because "risk alleged is `open and obvious' and `readily apparent as a matter of common sense'"); Lamb v. Kysor Indus., 305 A.D.2d 1083, 759 N.Y.S.2d 266, 268 (4th Dep't 2003) (no duty to warn of open and obvious danger of placing fingers in path of power saw); Belling v. Haugh's Pools, Ltd., 126 A.D.2d 958, 511 N.Y.S.2d 732, 733 (4th Dep't 1987) (no duty to warn of open and obvious danger of diving into shallow pool); Langiulli v. Bumble Bee Seafood, Inc., 159 Misc.2d 450, 604 N.Y.S.2d 1020, 1021 (Sup. Ct.1993) (breach of warranty claim stated when "consumer is injured by conditions which he could not have reasonably anticipated to be present in the product purchased"). Whether a danger is in fact common knowledge among the public is ordinarily a question of fact that cannot be resolved at the motion to dismiss stage. See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 175 F.Supp.2d 593, 626 n. 50 (S.D.N.Y.2001) (denying defendant's motion to dismiss plaintiffs' failure to warn claims because court could not determine, as matter of law, that "it is common knowledge that gasoline must be handled with care"); Rudloff v. Wendy's Rest. 12 Misc.3d 1081, 821 N.Y.S.2d 358, 369 (City Ct. Buffalo 2006) (relevant question on breach of implied warranty claim is whether one would reasonably anticipate substance would be present, and this question is ordinarily one of fact for jury). But see Kaplan v. Am. Multi-Cinema, Inc., 21 Misc.3d 1103(A), 873 N.Y.S.2d 234, *2 (Civ.Ct.2008) (table decision) (determining as matter of law that one reasonably expects un-popped kernels in popcorn); Vitiello v. Captain Bill's Rest., 191 A.D.2d 429, 594 N.Y.S.2d 295, 296 (2d Dep't 1993) (determining, as matter of law, that one reasonably expects fish filet is not free of all bones).

This is not a case where I can say as a matter of law at this stage that the dangers of mercury poisoning from consumption of canned tuna fish are open and obvious, and that an ordinary consumer would necessarily be aware that canned tuna fish contains high levels of methylmercury, the consumption of which could [419] lead to mercury poisoning. This is particularly so because mercury is "an odorless, colorless, tasteless," metal, and thus nothing about the appearance of the fish itself would reveal either that it contains mercury or that such mercury may be dangerous if consumed on a daily basis. (Am. Compl. ¶ 3.) There may be many consumers who are unaware that canned tuna fish—which they believe is a low-fat, heart-healthy, source of protein—in fact contains mercury which can, in high quantities, be harmful to their health. Thus, although the facts as developed may permit the conclusion, by the Court on summary judgment or by the jury at trial, that consumers do reasonably expect mercury in their tuna and understand that it can be harmful, the allegations of the Amended Complaint do not support such a conclusion, and it is not obvious to the Court as a matter of "judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

4. Failure to Warn

Plaintiff here has adequately set forth a strict liability failure to warn claim. As noted above, he has established both injury and proximate cause, and has sufficiently alleged that the dangers of mercury poisoning from consumption of canned tuna fish are not open and obvious. Further, there is no suggestion at this stage that this particular Plaintiff was, in fact, aware either that canned tuna fish contained methylmercury or that there were risks inherent in the consumption of fish which contained high concentrations of this substance. See Colon ex rel. Molina, 199 F.Supp.2d at 85 ("A failure-to-warn inquiry focuses on three factors: obviousness of risk from actual use of product, knowledge of the particular user, and proximate cause."). Finally, the fact that methylmercury in tuna may be "naturally occurring" does not necessarily mean Defendants cannot be strictly liable for failing to warn customers of same.

Defendants nonetheless contend that Stop & Shop cannot be held liable for failure to warn because "there are no circumstances under which the alleged defect could have been discovered during a normal inspection while the tuna cans were in Defendant Stop & Shop's possession." (Defs.' Mem. 23.) "There is no question," however, "that under New York law the seller of a defective product may be strictly liable for any resultant injury even though the seller was not responsible for the defect." Davila v. Goya Foods, Inc., No. 05-CV-8607, 2007 WL 415147, at *6 (S.D.N.Y. Feb. 7, 2007). Thus, an injured plaintiff in a strict liability failure to warn case may recover from both manufacturers and retail sellers of the product. See Adeyinka v. Yankee Fiber Control, Inc., 564 F.Supp.2d 265, 274-75 (S.D.N.Y.2008) (strict liability for product defects "also extends to sellers who by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation") (internal quotation marks omitted). The retailer can be held strictly liable for failure to warn regardless of whether it could discover the defect upon normal visual inspection of the product. See Leary ex rel. Debold, 799 N.Y.S.2d at 873 ("Distributors and retailers may be held strictly liable to injured parties, even though they may be innocent conduits in the sale of the product. . . . It is well settled that strict products liability extends to retailers and distributors in the chain of distribution even if they never inspected, controlled, installed or serviced the product") (internal quotation [420] marks omitted).^[11] Defendants' motion to dismiss Plaintiff's strict liability failure to warn claim (Counts I and II) against both Bumble Bee and Stop & Shop is therefore denied.

Plaintiff has also adequately alleged a negligent failure to warn claim against Bumble Bee, because "[r]egardless of the descriptive terminology used to denominate the cause of action (viz, `strict liability' or `negligence'), where the theory of liability is failure to warn, negligence and strict liability are equivalent." Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 423 N.Y.S.2d 95, 97 (4th Dep't 1979); see Anderson v. Hedstrom Corp., 76 F.Supp.2d 422, 439 (S.D.N.Y.1999) ("Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent.") (internal quotation marks omitted); Denny, 87 N.Y.2d at 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 ("Failure to warn claim . . . couched in terms of strict liability, is indistinguishable from a negligence claim.") (internal quotation marks omitted). Defendants' motion to dismiss Plaintiff's claim against Bumble Bee for negligent failure to warn is thus likewise denied.

Defendants are correct, however, that Plaintiff's negligent failure to warn claim cannot be sustained against Stop & Shop. Under a negligence theory of liability, a "retailer . . . can be held liable . . . for the sale of a defective product or for failure to warn only if it fails to detect a dangerous condition that it could have discovered during the course of a normal inspection while the product was in its possession." Pelman, 237 F.Supp.2d at 523. Consequently, Defendants' motion to dismiss Plaintiff's claim (within Count II) for negligent failure to warn against Stop & Shop is granted.

5. Breach of Implied Warranty of Merchantability

Plaintiff has also adequately asserted a breach of implied warranty of merchantability claim here. "To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the [421] product was not reasonably fit for its intended purpose, an inquiry that focuses on the expectations for the performance of the product when used in the customary, usual[,] and reasonably foreseeable manners." O'Sullivan v. Duane Reade, Inc., 27 Misc.3d 1215(A), 910 N.Y.S.2d 763, *6 (N.Y.Sup.2010) (table decision) (internal quotation marks omitted); see New York U.C.C. § 2-314(2)(c); Derienzo v. Trek Bicycle Corp., 376 F.Supp.2d 537, 570 (S.D.N.Y.2005); Denny, 639 N.Y.S.2d at 256, 662 N.E.2d 730; Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 783 N.Y.S.2d 698, 701 (3d Dep't 2004).^[12] Further, "[i]n a breach of implied warranty action, the inquiry is not whether there were safer designs available." Groome v. Matsushita Elec. Corp. of Am., No. 92-CV-3073, 2000 WL 341134, at *6 (E.D.N.Y. Mar. 30, 2000); see Bah v. Nordson Corp., No. 00-CV-9060, 2005 WL 1813023, at *13 (S.D.N.Y. Aug. 1, 2005) ("[W]hether or not there were feasible safer alternative designs... is irrelevant to the merits of Plaintiff's breach of implied warranty claim."); Gonzalez by Gonzalez v. Morflo Indus., Inc., 931 F.Supp. 159, 165 (E.D.N.Y.1996) ("Plaintiff's recovery in a breach of warranty action depends on a showing that the product was not minimally safe for its expected purpose, regardless of the feasibility of making the product safer."); Rudloff, 821 N.Y.S.2d at 368 (neither origin of object nor efforts to prevent object's presence are determinative factors in reasonable expectations test).

The relevant question here, therefore, is whether the presence of mercury in Defendants' canned tuna, without any accompanying warnings, renders it not reasonably fit for the ordinary purpose for which it was intended. In other words, Plaintiff's claim for breach of implied warranty turns upon whether: 1) the customary, usual, and reasonably foreseeable use of tuna fish includes the type of consumption Plaintiff engaged in—namely, eating approximately one to two cans of tuna fish daily for more than two years; and 2) Plaintiff reasonably expected mercury— which, when consumed in those quantities, [422] could be poisonous—to be present in the fish. As explained above, at this stage Plaintiff has plausibly alleged as much. (The Court on summary judgment or a jury could, of course, conclude otherwise.) Furthermore, Plaintiff's ability to recover under his breach of implied warranty claim is not affected by the feasibility of making the product safer, and thus whether mercury is naturally present in tuna and/or can be removed through the use of ordinary care is irrelevant. Because Plaintiff plausibly alleges that he was, indeed, "injured by conditions which he could not have reasonably anticipated to be present in the product purchased," Langiulli, 604 N.Y.S.2d at 1021, Defendants' motion to dismiss Plaintiff's claim for breach of the implied warranty of merchantability as to Bumble Bee is denied.

With respect to Plaintiff's claim for breach of implied warranty of merchantability against Stop & Shop (Count II), however, such claim must fail. For claims for breach of warranty and negligence, a retailer "cannot be held liable for injuries sustained from the contents of a sealed product even though a test might have disclosed a potential danger" because "[t]here [i]s no obligation upon it to make such a test." Brownstone v. Times Square Stage Lighting Co., 39 A.D.2d 892, 333 N.Y.S.2d 781, 782 (1st Dep't 1972); see Cosgrove v. Delves' Estate, 35 A.D.2d 730, 315 N.Y.S.2d 369, 371 (2d Dep't 1970) (dismissing claim for breach of warranty against retailer because "evidence established that she could not have discovered any danger by mere inspection [and s]he was not obligated under these circumstances to ... test" the product); Alfieri v. Cabot Corp., 17 A.D.2d 455, 235 N.Y.S.2d 753, 757 (1st Dep't 1962) (retail seller not liable "even though it might have discovered the dangerous character ... by a test [because t]here was no obligation upon it to make such test"). Because Stop & Shop is a retail seller that cannot be held liable under breach of warranty for a defect it could not discover through ordinary inspection, Defendants' motion to dismiss Count II, as to a breach of implied warranty, is granted.

F. Counts III and IV

Defendants also contend that Counts III and IV should be dismissed because "Plaintiff improperly couches a common law claim for punitive damages, which is a prayer for relief, as a cause of action ... [and] there is no independent cause of action for punitive damages" under New York law. (Defs.' Mem. 22.) Counts III and IV appear to merely duplicate the claims that are set forth in Counts I and II. Thus, to the extent that Counts III and IV are, in fact, simply requests for punitive damages, they are dismissed as "separate claim[s] for punitive damages . . . [which] cannot be maintained" because "[i]t is settled that there is no independent cause of action for punitive damages." Mayes v. UVI Holdings, 280 A.D.2d 153, 723 N.Y.S.2d 151, 157 (1st Dep't 2001) (internal quotation marks omitted). That Counts III and IV are dismissed does not, however, preclude Plaintiff's ability to recover punitive damages if he is successful on his remaining claims. See Goldberg, 411 N.Y.S.2d at 294 ("The relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer for damages.").

G. NYS Agriculture & Markets Law Claims

Finally, Defendants assert that Counts V and VI should be dismissed because Defendants' manufacture and sale of its canned tuna fish does not violate any provision of the New York Agriculture and Markets ("A & M") Law. (Defs.' Mem. 24.) [423] Plaintiff, however, contends that Defendants' product was `adulterated' and `misbranded' in violation of Sections 199, 200, and 201 of this Statute. (Pl.'s Mem. 23.)

Section 199-a(1) of the A & M Law provides that "No person or persons, firm, association or corporation shall within this state manufacture, compound, brew, distill, produce, process, pack, transport, possess, sell, offer or expose for sale, ... any article of food which is adulterated or misbranded within the meaning of this article." Section 200 of this law defines adulterated food and provides that food shall be deemed adulterated:

1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this subdivision if the quantity of such substance in such food does not ordinarily render it injurious to health.

2. If it bears or contains any added poisonous or added deleterious substance other than one which is (a) a pesticide chemical in or on a raw agricultural commodity, (b) a food additive, or (c) a color additive, which is unsafe within the meaning of section two hundred two, or if it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section four hundred eight-a of the federal food, drug and cosmetic act, as amended, or if is, or it bears or contains, any food additive which is unsafe within the meaning of section four hundred nine of such federal act, as amended; provided, that where a pesticide chemical has been in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under section four hundred eight of such federal act, and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating or milling, the residue of such pesticide chemical remaining in or on such processed food shall not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice, and the concentration of such residue in the processed food, when ready to eat, is not greater than the tolerance prescribed for the raw agricultural commodity.

3. If it consists in whole or in part of a diseased, contaminated, filthy, putrid or decomposed substance, or if it is otherwise unfit for food.

....

5. If it is the product of a diseased animal or of an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse.

....

9. If damage or inferiority has been concealed in any manner.

....

11. If it falls below the standard of purity, quality or strength which it purports or is represented to possess.

N.Y. Agric. & Mkts. Law § 200.

Plaintiff asserts in Count V that "by manufacturing, selling, processing, marketing and packaging canned tuna fish adulterated with poisonously high levels of mercury, the defendants violated [A & M] Law Sections 199-a(1), 200(1), 200(2), 200(3), 200(5), 200(9) and 200(11)." (Am. Compl. ¶ 52.) In Langiulli, 604 N.Y.S.2d at 1022, the court held that the apparent thrust and intent of Sections 199 and 200 of the A & M Law "is to prohibit the sale of impure or contaminated products, and [they] are not in fact aimed at the presence [424] of foreign objects in the product." Thus, the court determined, a foreign substance such as a tuna bone in a can of tuna fish does not "adulterate" the tuna fish for purposes of this statute. Id. Based on this logic, Defendants assert that because mercury is natural to canned tuna, and because unlike with "a lingering fish bone, which with extraordinary care might have been removed, there is simply no way to remove mercury from tuna," there is an even more compelling argument that Defendants' canned tuna should not be deemed "adulterated" by virtue of the mercury found therein. (Defs.' Mem. 24-25.) Aside from the fact that the impossibility of removing mercury from tuna is not part of the record before me, I do not find Defendants' argument persuasive. If mercury naturally occurs in canned tuna and cannot be removed, it is less "foreign" than a bone in a purportedly boneless product would be. In fact, it appears to this Court that mercury could be the sort of substance from which the legislators wanted to protect consumers, because the statute specifically contemplates that substances which are "not [] added substance[s]"—which would include naturally occurring substances—could in some circumstances be an adulterant: Section 200(1) of the A & M Law provides that foods that contain poisonous or deleterious substances that are not added substances will not be considered adulterated "if the quantity of such substance in such food does not ordinarily render it injurious to health." N.Y. Agric. & Mkts. Law § 200(1). The flip side obviously is that a non-added (naturally occurring) substance can be an adulterant if it ordinarily renders the food injurious to health. Here, Plaintiff has alleged that Defendants' tuna fish, in the quantity Plaintiff consumed (which I have determined was not unreasonable as a matter of law), does, in fact, ordinarily render it injurious to health due to the high concentration of mercury therein (although a jury might also find that Plaintiff's consumption was not "ordinary"). Thus, taking Defendants' contention that mercury is natural to tuna fish (and thus not an added substance) as true, Plaintiff has at this stage adequately pleaded a violation of Section 200(1) of the New York State Agriculture and Markets Law. It may be that as the facts are developed, the Court on summary judgment or a jury could conclude that the mercury in tuna does not "ordinarily" render it harmful, but such a conclusion cannot be drawn from the Amended Complaint. Plaintiff has similarly sufficiently pleaded a violation of Section 200(11) because Defendants' tuna fish arguably fell below the standard of quality—namely, that it was a heart-healthy product—that Defendants represented it possessed. Defendants' motion to dismiss these claims is therefore denied.

Plaintiff's claims under Sections 200(2), 200(3), 200(5), and 200(9), cannot, however, survive. First, with respect to Section 200(2), despite Plaintiff's assertion to the contrary, there is no indication that Defendants' canned tuna contained "any added poisonous or added deleterious substance." The Amended Complaint does not allege any addition and is consistent with Defendants' claim that the mercury was already part of the fish before it was canned or sold. See People ex rel. Brown, 171 Cal.App.4th at 1573, 90 Cal.Rptr.3d 644 (affirming trial court's determination that preponderance of the evidence supports finding that methylmercury in tuna is naturally occurring). Next, with respect to Section 200(3), while Defendants' canned tuna contained mercury, it was not "contaminated" by such mercury because contamination under this section ordinarily refers to an external substance that adulterates the food product, see, e.g., J & R [425] Salvage & Storage Co. v. Barber, 65 A.D.2d 894, 410 N.Y.S.2d 413, 414 (3d Dep't 1978) (finding bags of coffee beans that were "heavily covered with mouse and rat excreta pellets" were "contaminated" under Section 200(3) of the A & M Law), and Plaintiff has not alleged that the mercury was external or added. Additionally, Defendants' tuna fish was not inherently "unfit for food;" it was perhaps merely unfit for consumption when eaten in certain quantities. Thus Plaintiff's claim under Section 200(3) cannot survive. Plaintiff's claim under Section 200(5) also cannot survive a motion to dismiss because Plaintiff has not alleged that Defendants' canned tuna is the product of a "diseased" animal, nor is there any reason to assume that the tuna was "diseased" by virtue of its high concentration of mercury. Finally, Plaintiff's claim under section 200(9) does not survive because the Complaint contains no facts suggesting that Defendants' canned tuna fish was inferior to ordinary canned tuna fish—indeed, it is apparently no different than any other canned tuna fish on the market—and Plaintiff does not allege that Defendants took any affirmative action to conceal the existence of the mercury. Thus, Defendants' motion to dismiss Plaintiff's claims under Sections 200(2), 200(3), 200(5) and 200(9) of the New York State Agriculture and Markets Law (Count V) is granted.

Although Defendants assert in their motion papers that both Counts V and VI of Plaintiff's Complaint, alleging violations of New York State Agriculture and Markets Law, must be dismissed because they fail to state a claim, Defendants' arguments in their motion papers are limited to Plaintiff's claims in Count V under Section 200, with respect to adulterated food, and they do not address the merits of Plaintiff's claims in Count VI under Section 201, with respect to misbranding. Likewise, Defendants have not included any discussion of Count VII of Plaintiff's Amended Complaint, which alleges that "defendants engaged in deceptive acts and practices in violation of New York State General Business Law Section 349(a)." (Am. Compl. ¶ 58.) Thus Counts VI and VII—which in any event appear to the Court, at least at first blush, to state a claim—will stand.

IV. Leave To Amend

Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). It is within the sound discretion of the district court to grant or deny leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). "Leave to amend, though liberally granted, may properly be denied for: `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Amendment is futile when the claim as amended cannot "withstand a motion to dismiss pursuant to Rule 12(b)(6)," and "[i]n deciding whether an amendment is futile, the court uses the same standard as those governing the adequacy of a filed pleading." MacEntee v. IBM, 783 F.Supp.2d 434, 446 (S.D.N.Y.2011) (internal quotation marks omitted). Where the problem with a claim "is substantive[,] better pleading will not cure it," and "[r]epleading would thus be futile." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). Leave to amend may also be denied where the party fails to identify with sufficient specificity the facts that would save his Complaint were he granted leave to amend. See Arnold v. KPMG LLP, 334 Fed.Appx. 349, 352-53 [426] (2d Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 503, 175 L.Ed.2d 348 (2009).

A pre-motion conference was held on August 17, 2010, at which time Plaintiff was granted leave to amend his Complaint and was advised by the Court that he "ought to put everything in there that [he's] got because[i]f [Defendants'] motion is well taken, [he]'ll already have had [his] chance to amend." (Hr'g Tr. 5, Aug. 17, 2010.) Plaintiff filed his Amended Complaint on August 31, 2010. (Doc. 9.) He has not requested leave to file a Second Amended Complaint, demonstrated how further amendment would cure the deficiencies that remain in his pleadings, as identified in Defendants' papers, or submitted to the Court a Proposed Second Amended Complaint addressing such deficiencies. Accordingly, I decline to grant leave to amend sua sponte. See, e.g., Walton v. Morgan Stanley & Co., 623 F.2d 796, 799 n. 7 (2d Cir.1980) ("[A]ppellants never sought leave to amend their complaint either in the district court or as an alternative form of relief in this court after [appellee] raised the issue of the sufficiency of appellants' complaint. Accordingly, we see no reason to grant such leave sua sponte."); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y.2005) (denying leave to amend because "the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by the defendants and given a chance to amend their Consolidated Amended Complaint," and "plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects"), aff'd sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (plaintiffs "were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies") (internal quotation marks omitted); see also Ruotolo, 514 F.3d at 191 (affirming denial of leave to amend "given the previous opportunities to amend").

V. Conclusion

For the reasons stated above, Defendants' Motion for Judicial Notice is GRANTED, and Defendants' Motion to Dismiss is GRANTED as to Counts 111 and IV, as to the allegations for breach of implied warranty and negligent failure to warn against Stop & Shop within Count II, and as to the allegations within Count V as to subsections 200(2), 200(3), 200(5), and 200(9), and DENIED in all other respects. The Clerk of the Court is respectfully directed to terminate the pending motions, (Docs. 19, 22). The remaining parties are directed to appear for a status conference on October 14, 2011, at 11:00 a.m.

SO ORDERED.

[1] "Am. Compl." refers to Plaintiff's Amended Complaint, filed on August 31, 2010. (Doc. 9.)

[2] "Goldstein Cert." refers to the October 20, 2010 Certification of Scott H. Goldstein in support of Defendants' motion requesting judicial notice. (Doc. 22.)

[3] "Defs.' Mem." refers to Defendants Bumble Bee Foods, LLC and the Stop & Shop Supermarket Company, LLC's Memorandum of Law in Support of Their Motion to Dismiss Plaintiff's Amended Complaint for Failure To State a Claim. (Doc. 19.)

[4] The district court in Fellner took judicial notice of all these documents except for the FDA's Letter Responding to the Martek Petition, (Goldstein Cert. Ex. E). See Fellner, 539 F.3d at 242-43. Although the lower court did not take formal judicial notice of that last document, the circuit court nonetheless specifically addressed it and opined that it failed to see how it "might preempt Fellner's lawsuit" or how it spoke "to a relevant issue," because it "concerned not the risks of mercury in fish specifically but rather the impact of dietary supplements of `omega-3 fatty acids' on heart disease," and the "FDA merely explained that it would decline to require that the omega-3 fatty acid health claim be accompanied by a mercury warning, not that all mercury warnings should be affirmatively prohibited." Fellner, 539 F.3d at 253 n. 10.

[5] Defendants contend that Plaintiff's Opposition, which relies heavily on the Fellner decision, is "devoid of any mention of the live circuit split on this issue." (Defendants Bumble Bee Foods, LLC and the Stop & Shop Supermarket Company, LLC's Reply Brief in Further Support of Defendants' Motion to Dismiss ("Defs.' Reply"), Doc. 21.) Defendants' base their assertion that there is a "live circuit split" on their claim that "the California Supreme Court affirmed a thirty-eight page decision which concluded that: (1) California warning laws were preempted by a conflict with the FDCA; and (2) methylmercury in tuna is naturally occurring. People ex rel. Brown [v. Tri-Union Seafoods, LLC] at 171 Cal.App.4th 1549 [90 Cal.Rptr.3d 644] (1st Dist.2009)." (Id.) This assertion is disingenuous. To begin, the California Supreme Court did not express any opinion with respect to the Court of Appeal's affirmation of the trial court's ruling in that case. Instead, the California Supreme Court merely denied a request for depublication of the Appellate Court's opinion, People v. Tri-Union Seafoods, No. A116792, 2009 Cal. LEXIS 6018 (June 24, 2009), an action which "is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion." Cal. R. Ct. 8.1125(d). Moreover, the California Appellate Court, which did express an opinion regarding the trial court's decision, was explicit that it affirmed the lower court's judgment "solely on the ground that substantial evidence supports the trial court's finding that methylmercury in tuna is naturally occurring." People ex rel. Brown, 171 Cal.App.4th at 1576, 90 Cal. Rptr.3d 644 (1st Dist.2009). The assertion that either the California Supreme or Appellate Court made any determination with respect to preemption is simply wrong. Furthermore, even if either court had reached the preemption issue and determined that state law was preempted in the circumstances present here, this would not create a "circuit split," which occurs when two or more federal courts of appeal differ in their interpretations. In any event, as noted above, I agree with the Fellner court's analysis of the preemption issue here.

[6] "Defs.' Reply" refers to Defendants Reply Brief in Further Support of Defendants' Motion to Dismiss, filed on January 14, 2011. (Doc. 21.)

[7] Defendants argue that Plaintiff concedes that the cause of his symptoms could not be determined. (See Defs.' Mem. 13 ("[D]espite consulting with numerous doctors, no one was able to causally relate any of the plaintiff's health problems with his alleged elevated mercury levels and alleged tuna consumption."); Defs.' Reply 8 ("[D]espite a multitude of exams and testing by several medical providers plaintiff was not found to have any physical ailment.").) In so doing Defendants disingenuously interpret statements in paragraphs six and seven of the Amended Complaint that clearly refer to the period before Plaintiff's blood was tested for mercury. That Plaintiff's mercury levels were dangerously high until he stopped eating Defendants' tuna fish, whereupon they returned to normal and his symptoms disappeared, more than plausibly supports the conclusion that the tuna caused the elevated mercury and the elevated mercury caused his symptoms. No more is required at the motion to dismiss stage. That the cause of the symptoms was not initially apparent does nothing to undermine the plausibility of the allegations.

[8] Plaintiff also recites formulaic elements for breach of express warranty, (see Am. Compl. ¶¶ 19, 22, 35, 38), but provides no facts with respect to any express warranty. Accordingly, the Amended Complaint is dismissed to the extent it alleges a breach of express warranty.

[9] Defendants attempt to analogize this case to Pelman, which held that fast food restaurants have no duty to warn customers that certain foods, like hamburgers and french fries, if consumed over a prolonged period of time, may lead to obesity. 237 F.Supp.2d at 531-34, 540-43. That case is not, however, instructive here. The Pelman court stated unequivocally that "[i]t is well-known that fast food in general, and McDonalds' products in particular, contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one." Id. at 532. By contrast, there is no indication in the record here, at least at this stage, that it is common knowledge that canned tuna fish contains high levels of methylmercury and that ingestion of such fish in large quantities can have deleterious health effects. Thus, unlike the Pelman Plaintiffs, Plaintiff here was allegedly endeavoring to eat a heart-healthy diet, but because he was unaware that canned tuna fish contained high levels of methylmercury, he inadvertently exposed himself to an unhealthy and potentially dangerous substance.

I likewise do not find determinative Comment (h) to Section 402A of the Restatement (2d) of Torts, which asserts that if an "injury results . . . from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable." I simply cannot determine as a matter of law, at least at this stage, that eating one to two cans of tuna fish daily in an apparent effort to pursue a heart-healthy diet is unreasonable or unforeseeable, and akin to child who eats too much candy and thereby makes herself ill.

[10] "Pl.'s Mem." refers to Plaintiff's memorandum of law in opposition to Defendants' motion to dismiss, filed on January 15, 2011. (Doc. 20.)

[11] Defendants argue that under New York law "a retailer is liable for the sale or failure to warn of a defective product, `only if it fails to detect a dangerous condition that it could have discovered during the course of a normal inspection while the product was in its possession,'" (Defs. Reply 13), citing Pelman, 237 F.Supp.2d at 523, Luckern v. Lyonsdale Energy Ltd. P'ship, 281 A.D.2d 884, 722 N.Y.S.2d 632, 636 (4th Dep't 2001), and Sideris v. Simon A. Rented Servs., 254 A.D.2d 408, 678 N.Y.S.2d 771, 772 (2d Dep't 1998). These cases do not, however, relieve Stop & Shop of liability because they do not address strict liability claims. In both Pelman and Luckern the courts dealt exclusively with claims that arose under negligence and breach of warranty, not strict liability, and thus they are not analogous here. In Sideris, plaintiff was injured when she slipped and fell on a floor mat at the restaurant where she was employed. 678 N.Y.S.2d at 772. She brought claims against the company that rented the mat to the restaurant, under "negligence and, purportedly, breach of implied warranty and strict products liability" theories. Id. The Sideris court, in a two-page opinion, reversed the lower court's denial of summary judgment because "plaintiff failed to proffer sufficient proof to demonstrate the existence of a material issue of fact." Id. The court further asserted that the lower court's judgment was also improper because defendant "demonstrated that it had satisfied its duty to inspect by inspecting all mats both before and upon delivery." Id. (internal citation omitted). It is not clear from this short opinion whether the court believed that defendant's duty to inspect applied to each of plaintiff's causes of actions, or whether it was applicable only to plaintiff's claims for negligence and/or breach of implied warranty. If the Sideris court in fact intended to assert that defendant could avoid being held liable under a theory of strict liability if it fulfilled its duty to inspect, this view appears to contradict the vast majority of New York cases that address this issue.

[12] Plemmons v. Steelcase Inc. held that under New York law, in addition to the reasonable expectation test cited above, "[a] breach of implied warranty claim requires proof of the following three elements: (1) that the product was defectively designed or manufactured; (2) that the defect existed when the manufacturer delivered it to the purchaser or user; and (3) that the defect is the proximate cause of the accident." No. 04-CV-4023, 2007 WL 950137, at *3 (S.D.N.Y. Mar. 29, 2007) (internal quotation marks omitted). Plemmons cited to three cases all of which were applying maritime law. See Silivanch v. Celebrity Cruises, Inc., 171 F.Supp.2d 241, 259 (S.D.N.Y.2001); In re American Export Lines, Inc., 620 F.Supp. 490, 518 (S.D.N.Y. 1985); Cigna Prop. & Casual Ins. Co. v. Bayliner Marine Corp., No. 92-7891, 1995 WL 125386, at *12 (S.D.N.Y. Mar. 22, 1995).

Since Plemmons, some courts addressing breach of implied warranty claims under New York law have picked up the Plemmons language and asserted that the aforementioned three elements are required for establishing a breach of implied warranty, see, e.g., Oscar v. BMW of N. Am., LLC, 274 F.R.D. 498 (S.D.N.Y.2011); Pinello v. Andreas Stihl Ag & Co. KG, No. 08-CV-0452, 2011 WL 1302223 (N.D.N.Y. Mar. 31, 2011); Dayton Superior Corp. v. Spa Steel Prods., Inc., No. 08-CV-1312, 2010 WL 3825619 (N.D.N.Y. Sept. 24, 2010); Lewis v. White, No. 08-CV-7480, 2010 WL 6465230 (S.D.N.Y. Jul. 1, 2010); Lewis v. Abbott Labs., No. 08-CV-7480, 2009 WL 2231701 (S.D.N.Y. Jul. 24, 2009); Barrett v. Black & Decker, No. 06-CV-1970, 2008 WL 5170200 (S.D.N.Y. Dec. 9, 2008); Dalton v. Stedman Mach. Co., No. 05-CV-0452, 2008 WL 351676 (N.D.N.Y. Feb. 7, 2008), while others have simply looked to the reasonable expectations test to identify such a breach, see, e.g., Scientific Components Corp. v. Sirenza Microdevices, Inc., 399 Fed.Appx. 637 (2d Cir.2010); O'Sullivan, 910 N.Y.S.2d 763; Ferraro v. Perry's Brick Co., 30 Misc.3d 1213(A), 924 N.Y.S.2d 308 (Civ.Ct.2011) (table decision).

380 F.Supp. 1061 (1974)

Flatow & Hinojosa, Marc Flatow, Houston, Tex., for plaintiff.

[1062] Vinson, Elkins, Searls, Connally & Smith, Raybourne Thompson, Jr., and Robert A. Rowland, III, Houston, Tex., for defendant.

MEMORANDUM AND ORDER:

SEALS, District Judge.

This action is before the Court on a Motion for Summary Judgment filed by Defendant. In this diversity suit, 28 U. S.C. § 1332(a)(1), Plaintiff seeks to recover for injuries to his teeth and gums which were allegedly suffered while he was eating the contents of a can of Defendant's Oyster Stew Soup. Plaintiff claims that the injuries were caused by a small deleterious object in the soup. Plaintiff surrendered this object to Defendant for examination and it has been identified as a small irregularly shaped oyster pearl.

Plaintiff sets forth two theories of recovery: strict liability in tort and negligence in the manufacture and labeling of this product. Defendant contends that on the undisputed facts before the Court, Plaintiff cannot prevail on a theory of strict liability and that there is no evidence in the record to raise an issue of negligence. In ruling on Defendant's motion this Court is, of course, bound to apply those principles of products liability and negligence law which would be applied by the courts of this State. Erie R.R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Texas courts have long recognized that the manufacturers of food products warrant that they are wholesome and fit for human consumption. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (Tex. 1942); Griggs Canning Co. v. Josey, 164 S.W.2d 835, 139 Tex. 623, (Tex. 1942); See also Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (Tex. 1938). The warranty was imposed by operation of law as a matter of public policy:

It seems to be the rule that where food products sold for human consumption are unfit for that purpose, there is such an utter failure of the purpose for which the food is sold, and the consequences of eating unsound food are so disastrous to human health and life, that the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, supra, at 829.

In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967), this strict liability concept applicable to foodstuffs was extended to include consumer products generally. See also, Putnam v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964). The McKisson court adopted the Restatement, Second, Torts § 402A which provides as follows:

Special Liability of Seller of Product for Physical Harm to User or Consumer

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In order to prevail under this strict liability standard Plaintiff must establish that: 1) the product in question was defective; 2) the defect existed at the time the products left the hands of the defendant; 3) that because of the [1063] defect the product was unreasonably dangerous to the user or consumer (plaintiff); 4) that the consumer was injured or suffered damages; 5) and that the defect (if proved) was the proximate cause of the injuries suffered. Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App. 1973); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir., 1974).

Defendant argues that, as a matter of law, the can of Oyster Stew Soup at issue here was not unfit, unwholesome, defective, or unreasonably dangerous. As indicated in Reyes v. Wyeth Laboratories, supra, "defective condition" and "unreasonably dangerous" are essentially synonymous. Further, in light of the Texas Supreme Court's adoption of Section 402A of the Restatement in McKisson, supra, it is apparent that a food product is defective or unreasonably dangeous if it is unwholesome or unfit for human consumption and vice versa.

Defendant's position is bottomed on what may be labeled the "foreign-natural" doctrine. This doctrine, which has been neither accepted nor rejected by Texas courts, apparently first emerged in Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144 (1936). There plaintiff brought suit for injuries caused by a fragment of chicken bone contained in a chicken pie. The court held that the chicken pie was not unfit for human consumption as a matter of law:

"Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say, as a matter of law that the alleged defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie." At 148 (Emphasis supplied)

Probably a majority of jurisdictions having occasion to treat the problem have adopted the Mix rationale. See, for example: Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421, 198 N.E.2d 309 (Mass. 1964), (fish bone in New England fish chowder); Allen v. Grafton, 170 Ohio St. 249, 164 N.E.2d 167 (1960) (oyster shell in oyster); Adams v. Great Atlantic & Pacific Tea Co., 251 N.C. 565, 112 S.E.2d 92 (partially crystalized grain of corn in a package of corn flakes); Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366 (1941), (sliver of bone in pork chop); Courter v. Dilbert Bros., Inc., 19 Misc.2d 935, 186 N. Y.S. 334 (1958), (prune pit in jar of prune butter); Norris v. Pig'N Whistle Sandwich Shop, 79 Ga.App. 369, 53 S. W.2d 718 (1949), (particle of bone in pork chop sandwich); Goodwin v. Country Club of Peoria, 323 Ill.App. 1, 54 N. E.2d 612 (1944), (turkey bone in cream turkey).

A relatively recent expression of the foreign-natural view is found in Musso v. Picadilly Cafeterias, Inc., 178 So.2d 421 (La.App. 1965). While eating at [1064] defendant's cafeteria, plaintiff encountered a cherry stone or pit in a slice of cherry pie. The court stated that vendors are strictly liable for injuries occasioned by the serving of food which is unwholesome or deleterious or which contains a vice or defect, but, held that a restauranteur is not liable for injuries resulting from substances natural to the food served and inadvertently left therein. The court's reasoning is attractively simple: if the food contains only natural substances it cannot be unfit or unwholesome. The essence of the foreign-natural rule and the rationale behind it is captured in the following passage from Musso:

The rationale of the majority rule as expressed in the cited authorities is that substances which are a natural part of the food served are not considered foreign matter or substances if inadvertently left therein. On this premise it is reasoned that the presence of substances natural to the ingredients or finished product does not constitute breach of the vendor's implied warranty that the food is wholesome and fit for human consumption. The cases further hold that the warranty implicit in the sale of food must be construed in the light of the common knowledge with reference to the nature and character of the food being served. In this respect it is further reasoned common experience dictates that one eating the meat of animals, fowl or fish should do so with the knowledge such foods may contain pieces of bone. At 426.

Not all jurisdictions have followed the foreign-natural view; it has been rejected by several courts in favor of a "reasonable expectation" test. In Zabner v. Howard Johnson's Inc., 201 So.2d 824 (Fla.App. 1967), a consumer was injured by a piece of walnut shell concealed in a dish of maple walnut ice cream. Following the foreign-natural test the trial court entered judgment for the defendant. After tracing the history of this doctrine and its application the appellate court opted in favor of a test of "reasonable expectation." "The test should be what is `reasonably expected' by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation."

Observing that natural substances can often be as dangerous to the consumer as foreign objects such as a pebble or a piece of glass or wire, the Zabner court stated: "[The] naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served." The key question under the reasonable expectation test is whether the consumer ought to have anticipated the injury producing object in the final product not whether the object is foreign or natural. What the consumer might reasonably expect, the court noted, is a jury question in most cases.

The reasonable expectation view is also well stated in Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64 (1960):

The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected by the consumer is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.

The test as applied to an action for breach of the implied warranty is keyed to what is "reasonably" fit. If it is found that the chicken bone the size alleged ought to be anticipated in a chicken sandwich and guarded against by the consumer plaintiff, then the sandwich was reasonably fit under the implied warranty. At 69.

See also, Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442, 77 A.L.R.2d 1 [1065] (1959); Wood v. Waldorf System, Inc., 79 R.I. 1, 83 A.2d 90 (1951); and Bonenberger v. Pittsburgh Mercantile Company, 345 Pa. 559, 28 A.2d 913 (1942).

Texas courts have never been in a position requiring an election between these two competing doctrines. A great number of cases involving harmful objects have been litigated but the objects were so obviously "foreign" that the issue did not arise. See, Athens Canning Co. v. Ballard, 365 S.W.2d 369 (Tex.Civ. App. 1963), (burr in a can of purple hull peas); Brumit v. Cokins, 281 S.W. 2d 154 (Tex.Civ.App. 1955), (glass in a milk-shake); Campbell Soup Company, Inc. v. Ryan, 328 S.W.2d 821 (Tex.Civ. App. 1959), (metal washer in a TV chicken dinner); Sweeney v. Cain, 243 S.W. 2d 874 (Tex.Civ.App. 1951), ("greenish brown slimy looking stuff with black spots on it" in a bottle of Coca-Cola).

Making an Erie educated guess, this Court holds that, if faced with the problem, Texas courts would follow the reasonable expectation rule as it is stated in Zabner. It is obvious that the "reasonable expectation" approach is considerably more compatible and consistent with Section 402A which has been adopted as the law of Texas in product liability cases. Section 402A makes the seller liable for injuries caused by defective or unreasonably dangerous products. "Defective condition" is defined in Comment (g) as ". . . a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." An article is "unreasonably dangerous" according to Comment (i) if it is ". . . dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." These Comments have been viewed as persuasive if not controlling in the application of Section 402A. Garcia v. Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App. 1971).

If Texas courts were to follow the "reasonable expectation" test they logically should reach a result consistent in every case with the Restatement definitions of "defective condition" and "unreasonably dangerous." This would not necessarily be true under the foreign-natural doctrine. It would be possible under that approach only if it is assumed that consumers always contemplate the presence of every species of object which might be categorized as natural to the food they are eating regardless of how infrequently the object might appear in common experience. That is obviously a faulty assumption which Texas courts are not at all likely to make.

Andrews, J., concurring in Zabner, supra, suggests that the difficulty with the foreign-natural test as a problem solving device lies not in its theory but in its artificial application. He contends that courts too often apply it at a preliminary stage of production focusing on a single ingredient rather than the final consumer product. "By moving the focus of the test to the consumable item the foreign-natural distinction as measured by the consumer's reasonable expectations becomes a valid and relevant standard."

If this analysis is correct, the only way of avoiding misapplication of the foreign-natural theory is to focus on what the consumer might reasonably expect to find in the final product. This being the case it would make even more sense to discard the foreign-natural distinction and go directly to the reasonable expectation issue. The use of these labels does not advance the inquiry and unnecessarily increases the possibility of confusion on the ultimate issue.

Loyacano v. Continental Insurance Company, 283 So.2d 302 (La.App. 1973) is an example of the confusion which adherence to the foreign-natural distinction can create. There the plaintiff sued for injuries caused by a bone fragment concealed in a ground meat patty. The court first professed adherence to the foreign-natural distinction of Musso, supra, and then stated:

In Musso there was ample evidence to show the probability of expectancy of [1066] cherry pits in pitted cherries, but unfortunately there is no evidence in the present case concerning the probability of pieces of bone appearing in hamburger. Simply as a matter of general knowledge, we cannot say that we can take judicial notice that a hamburger patty should not contain any pieces of bone whatsoever. . . . It may be said that a product can be considered defective if it does not meet the reasonable expectations of the ordinary consumer as to its safety. It is not the fact that a defect is a natural one which is important to this inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would normally take his own precautions. A package of ground meat is not expected to be consumed from the sealed package as a bottle of soda water or milk, but is expected to be processed or otherwise altered before consumption by the purchaser. Therefore, it seems to us that the strict liability imposed upon vendors of sealed packages of that nature, cannot be imposed upon the vendor here, except insofar as a foreign object would be concerned. For a natural object, such as a bone, from the only evidence produced in this case, it appears that the inquiry should be directed to the size of the bone left in the ground meat. At 305.

The court went on to hold defendant liable for the injury stating that defendant had not presented sufficient evidence to prove its lack of negligence in handling the ground meat. Lenmon, J., in a concurring opinion, indicates that Musso is the source of the problem and advocates a rethinking of the foreign-natural distinction, possibly portending changes to come in Louisiana jurisprudence. Texas courts have not descended into this quagmire and this Court is confident that they will not.

Having settled on the "reasonable expectation" standard the question before this Court can be restated. Can it be said, as a matter of law, that the consumer can reasonably expect to encounter a pearl in a can of Defendant's Oyster Stew Soup. This Court thinks not. It is clearly an issue for the jury to decide. With the undisputed facts reflected in the pleadings, interrogatories and affidavits on file herein it would be impossible for this Court to ascertain what the common consumer experience is with respect to pearls in canned oyster stew. Defendant's Motion For Summary Judgment on the issue of strict liability is therefore denied.

Defendant's motion going to Plaintiff's negligence theory of recovery is also denied. Even where there are no facts in dispute, it is usually for the jury to decide whether the conduct in question meets the reasonable man standard. Cf., Wright & Miller, Federal Practice and Procedure, § 2729 at 572. On the facts reflected in this record the Court cannot say that Defendant was not negligent in the manufacture and labeling of this product as a matter of law.

673 F.2d 189 (1982)

Patrick S. Moore, Walter M. Ketchum, Ltd., Chicago, Ill., for plaintiffs-appellants.

David E. Bennett, Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, and PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

This is an appeal from the dismissal of a complaint filed by the plaintiffs, Kenneth and Dorothy Garrison, against the defendant, Heublein, Inc., the manufacturer and distributor of Smirnoff vodka.^[1] In that complaint, the plaintiffs alleged that Kenneth Garrison has suffered physical and mental injuries as a result of consuming the defendant's product over a twenty-year period. They urged that the defendant is liable for those injuries on five separate theories: negligence, willful and wanton conduct, products liability, fraud, and false and misleading advertising. The crux of each of those claims is not that the product was adulterated or tainted, but rather that the defendant failed to warn the plaintiff of certain "propensities" of the product.^[2]

[190] In response to the defendant's motion under Fed.R.Civ.P. 12(b)(6), the court dismissed the complaint for failure to state a claim upon which relief can be granted. In its order, the court noted that each of the plaintiffs' theories of recovery "rest[s] on the claim that defendant had a duty to disclose, by labels and advertising, that consumption of its products may be hazardous to the consumer's health and physical and economic well-being." The court observed that the imposition of such a duty would have to be based on the "premise that liquor poses latent risks not appreciated by users." Rejecting that premise, the court found that, in light of common knowledge concerning alcohol and its effects, "the defendant has no duty to add, by labels or advertising, to the flow of information."

In this appeal, the plaintiffs challenge the district court's dismissal in two respects. First, they argue that the court did not apply the proper standard in ruling on the defendant's Rule 12(b)(6) motion. Second, they attack the substance of the decision, arguing that the court erred in ruling, as a matter of law, that the defendant does not have a duty to warn. In support of their second argument, they assert the following points: (1) that the defendant's product is defective because of the absence of warnings of dangers inherent in its use; (2) that the defendant has a duty to warn because the dangers of the products are not obvious; and (3) that, even if the dangers can be characterized as obvious, policy reasons dictate that a duty to warn be imposed. For the reasons noted below, we reject these arguments and affirm the judgment of the district court.

I

The proper standard for appraising the sufficiency of a complaint is "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir. 1981). The plaintiffs' contention that the district court misapplied that standard is mistaken. Clearly, under the standard, "`want of merit may consist in an absence of law to support a claim of the sort made.'" 2A Moore's Federal Practice ¶ 12.08 at 2271 (2d ed. 1981) (quoting De Loach v. Crowley's, Inc., 128 F.2d 378, 380 (5th Cir. 1942)). That was precisely the basis for the court's dismissal. It found each of the plaintiffs' theories of recovery premised on an alleged duty to disclose which, as a matter of law, does not exist. Because, under Illinois law, the determination of whether a duty to warn exists is a question of law, Genaust v. Illinois Power Company, 62 Ill.2d 456, 466, 343 N.E.2d 465, 471 (1976), the court's analysis was procedurally correct. Our review, then, must focus on the soundness of the underlying substantive legal determination.^[3]

II

Although the plaintiffs allege five separate theories of recovery, their appellate argument concerning the defendant's duty to warn relies to a great extent upon concepts developed in the field of strict liability. Because that theory involves the lowest threshold for establishing such a duty, a failure in that regard would necessarily undercut the duty component of the other counts. Thus, it is appropriate to begin our inquiry by focusing on that area of law.

The doctrine of strict products liability, as articulated in the Restatement (Second) of Torts § 402A, has been adopted as law in Illinois. Genaust v. Illinois Power Company, supra; Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). That section imposes liability upon "[o]ne who sells any product in a defective condition [191] unreasonably dangerous to the user or consumer...."

Initially, the plaintiffs attempt to bring themselves within the doctrine by relying on Illinois cases which hold "that a failure to warn of a product's dangerous propensities may [itself] serve as the basis for holding a manufacturer or seller strictly liable in tort." See Woodill v. Parke Davis & Co., 79 Ill.2d 26, 29, 37 Ill.Dec. 304, 306, 402 N.E.2d 194, 196 (1980).^[4] That move, however, is of little value to the plaintiffs. It only demonstrates that, in circumstances when a warning is necessary, the failure to give that warning may support a strict liability action. It does not answer the critical question, that is, whether a warning is necessary in this case.

In Lawson v. G. D. Searle & Company, 64 Ill.2d 543, 1 Ill.Dec. 497, 356 N.E.2d 779 (1976), the Supreme Court of Illinois provided an insight into the proper approach for reaching an answer to that more basic question. In that case, the court approved the following jury instruction:

A product faultlessly made may be deemed to be unreasonably dangerous if it is not safe for such a use that is to be expected to be made of it and no warning is given.

64 Ill.2d at 547, 1 Ill.Dec. at 499, 356 N.E.2d at 781 (emphasis added). The court noted that the instruction paralleled certain comments to section 402A of the Restatement.^[5] Thus, those comments can lend to an understanding of this area of law.

Comment h restates the basic predicate of the Lawson jury instruction: "A product is not in a defective condition when it is safe for normal handling and consumption." The comment then qualifies that general proposition by noting that "[w]here, however, [a seller] has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger (see comment j), and a product sold without such warning is in a defective condition."

The plaintiffs rely on the latter language to support their contention that a warning is necessary in this case. They ignore, however, the fact that that qualification itself contains a caveat, the reference to comment j. That comment dealing with "directions and warning," is most salient to our present inquiry. It states in part that:

a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.... [T]he dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.

This treatment of dangers "generally known and recognized" is also apparent in comment i, which describes the requirement of unreasonable dangerousness under section 402A:

The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics....

This position is consistent with the Illinois Supreme Court's finding in Genaust v. Illinois Power Company, 62 Ill.2d at 466, 343 N.E.2d at 471, that the determination of whether a duty to warn exists involves a question of foreseeability, which must be resolved under a standard of objective reasonableness. In that case, the court refused to impose on the manufacturer of metal [192] antennas a duty to warn consumers of the danger of electrical arcing if the product was used in close proximity to power wires. The court found that, because "it is common knowledge that metal will conduct electricity..., it is not objectively reasonable to expect that a person ... would attempt to install a metal tower and antenna in such close proximity to electrical wires." Id.

Likewise, in this case, we find that even though there are dangers involved in the use of alcoholic beverages, because of the common knowledge of those dangers, the product cannot be regarded as unreasonably unsafe. See Prosser, Law of Torts 660 (4th ed. 1971).^[6] And, in light of the approach to the duty to warn approved in Lawson, a product that is not unsafe "for such a use that is to be expected to be made of it" requires no warning.^[7] Thus, we affirm the district court's finding that the defendant in this case has no duty to warn.

The plaintiffs' final attempt to counter this implication of the common knowledge of the dangers of alcohol by arguing that, as a matter of policy, the "manufacturer of [an] obviously defective product ought not to escape because the product was obviously a bad one,"^[8] must also be rejected. Their objection might be appropriate as a challenge to an "obvious danger doctrine" under which a manufacturer is discharged from his duty to warn merely by establishing that a defect is obvious. See Harris v. Karri-On Campers, Inc., 640 F.2d 65, 76 (7th Cir. 1981) (interpreting West Virginia law). That, however, is not our approach in this case. We are not saying that a duty to warn cannot arise simply because a defect in a product is obvious, even if that defect causes the product to remain unreasonably dangerous.^[9] Rather, we are saying that the dangers of the use of alcohol are common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous.

Because the district court was correct in finding that the defendant does not have a duty to warn a consumer of the common "propensities" of alcohol, and such a duty is essential to each of the plaintiffs' theories of recovery, we affirm the judgment of the district court.

[1] Jurisdiction is based on diversity of citizenship. The plaintiffs are both citizens of the State of Illinois. The defendant is a citizen of the State of Connecticut. The amount in controversy exceeds $10,000, exclusive of interest and costs.

[2] The plaintiffs claimed that the product has propensities "to cause physical damage to the consumer;" "to cause impairment to physical and motor skills for a period of time after consumption;" "to cause impairment to mental capacity and facilities for a period of time after consumption;" to affect the personality of the consumer; to be addictive; and to create dangers in the operation of a motor vehicle. The plaintiffs also complained that the defendant failed to state the ingredients of the product and the amount of the product that can be safely consumed.

[3] We agree with the district court's premise that the legal sufficiency of each of the plaintiffs' theories of recovery, as alleged in their complaint, hinges on whether a duty to warn exists.

[4] Such cases characterize the "failure to warn" as the "defect" in order to conform to the language of the Restatement. See, e.g., Nelson v. Hydraulic Press Manufacturing Company, 84 Ill.App.3d 41, 45, 39 Ill.Dec. 422, 425, 404 N.E.2d 1013, 1016 (2d Dist. 1980).

[5] The Court referred to comments h, i, and k.

[6] The plaintiffs' reliance on certain passages in the Report to the President and the Congress on Health Hazards Associated with Alcohol and Methods to Inform the General Public of these Hazards, U.S. Department of the Treasury and U.S. Department of Health and Human Services (1980), which illustrate that there are misperceptions about the use of alcohol, is not sufficient to upset the district court's finding, with which we agree, that it is common knowledge that certain dangers, including those alleged in the plaintiffs' complaint, are involved in the use of alcohol. See Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292, 302 (3d Cir. 1961) (concurring opinion).

[7] The alternative analytical approaches suggested by the plaintiffs, see Nelson v. Hydraulic Press Manufacturing Company, supra (balancing test), and Illinois State Trust Company v. Walker Manufacturing Company, 73 Ill.App.3d 585, 29 Ill.Dec. 513, 392 N.E.2d 70 (5th Dist. 1979) (unequal knowledge), are inapposite in that they do not specifically deal with the question of the common knowledge of a product's dangers.

[8] Palmer v. Massey Ferguson, Inc., 3 Wash.App. 508, 517, 476 P.2d 713, 719 (Wash.1970).

[9] For example, presumably a duty to warn would arise in the case of an obviously unguarded blade in a power-driven saw if the danger of injury was found to be unreasonable notwithstanding the obviousness of the defect.

18 Ariz. App. 10 (1972)
499 P.2d 741

[11] Kanne & Bickart, by Lawrence J. Marks, Phoenix, for appellants.

Renaud, Cook, Miller & Cordova, by Robert H. Renaud, Phoenix, for appellee.

HATHAWAY, Judge.

Appellants, plaintiffs in the superior court, brought a tort action against the appellee bottling company. The action resulted from plaintiff Lillian Slonsky's consumption of a soft drink which allegedly contained foreign material, including metallic filings. The action came to trial before a jury and the court directed a verdict in favor of appellee-defendant at the end of the plaintiffs' case. The defendant contended (1) that the evidence was insufficient on the issue of whether there had been tampering or reasonable opportunity for tampering; (2) that there was no evidence that the drink was deleterious. Before granting the motion for a directed verdict, the court indicated dissatisfaction with the evidence that "... the contents of this bottle was deleterious, toxic, posisonous, harmful."

Appellants contend on appeal that the evidence was sufficient to raise a jury question as to appellee's liability and that the trial court erred in its direction of verdict against them. We agree.

"A defendant's motion for directed verdict admits the truth of whatever evidence the opposing party has introduced and any inferences reasonably drawn therefrom. (Citations omitted) On such a motion the evidence must be treated and viewed in a light most favorable to the party against whom the motion is sought. (Citation omitted) The motion should be granted only where the evidence is not sufficient to support a contrary verdict or so weak that a court would feel constrained to set aside such a verdict on a motion for a new trial. (Citations)" Davis v. Weber, 93 Ariz. 312, 314, 380 P.2d 608, 610.

The evidence discloses that on August 21, 1968, while Lillian Slonsky was sitting under a hair-dryer at the Wild Hair Beauty Salon in Westown, Arizona, her daughter brought her a Fresca from the establishment's vending machine. After having consumed a substantial portion of the drink, she heard a sound apparently of some metallic contents within the bottle and upon looking into the bottle saw a piece of metal and some sediment. She looked in the mirror and saw that her tongue looked purple. Thereafter, she became nauseated and her daughter took her to a doctor. Mrs. Slonsky vomited at the doctor's office, was ill for 3 or 4 days and was unable to resume her normal activities for about 2 weeks.

Mrs. Slonsky's daughter testified that she observed no indentation in the cap or crown of the bottle before opening it, and observed nothing different about it from any other bottle cap, nor was there anything unusual in the opening of the bottle. Upon looking inside the bottle, she saw pieces of metal, "crud" and sand. She verified her mother's illness.

One of the hairdressers testified that she saw some metal particles, some green slime and some "white looking stuff" in the bottle. According to her, looking at the contents of the bottle made her sick. The other [12] hairdresser, Mrs. Slonsky's attendant at the time, observed a little bit of "gunk" in the bottle and stated that it looked dark and appeared to be a residue. She indicated that the residue appeared to contain metal. She also verified Mrs. Slonsky's illness at the time and stated that she never observed anyone around, or tampering with the bottles which were used to load the machine. Customers were never permitted to load the machine.

In regard to the deleterious nature of the drink, we are of the opinion that the evidence is clearly ample.

"One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer ..., if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

The rule stated ... applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or the consumer has not brought the product from or entered into any contractual relation with the seller." Restatement of Torts, 2nd, § 402A.

Strict liability in tort has been adopted in Arizona as the rule in product liability cases. See the concurring opinion in Nalbandian v. Byron Jackson Pumps, Inc., 97 Ariz. 280, 399 P.2d 681 (1965) and O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968). See Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d 1094 (1957) and Coca-Cola Bottling Co. v. Fitzgerald, 3 Ariz. App. 303, 413 P.2d 869 (1966), for Arizona authority dealing with the subject of contaminated soft drinks on the basis of res ipsa loquitur. In a similar case from Kentucky, the plaintiff was permitted to litigate on the basis of strict liability in tort and absence of privity was not permitted to reject the claim. Allen v. Coca-Cola Bottling Co., 403 S.W.2d 20 (Ky. 1966).

The evidence in the following cases was considered sufficient for submission to the jury: Where a foreign unwholesome substance was found in a sealed package or bottle or food or beverage, an inference arises, or presumption of negligence on the part of the manufacturer, Opelika Coca-Cola Bottling Co. v. Johnson, 46 Ala.App. 298, 241 So.2d 327, (Ala. Civ. App. 1970), cert. denied, 286 Ala. 460, 241 So.2d 331; evidence of foreign material in a soft drink bottle prior to removal of the cap, Glasper v. Wright Root Beer Co., 216 So.2d 586 (La. App. 1968); where the cellulose particles in a bottle of soft drink caused plaintiff's gastroenteritis was jury question, Jackson v. Cushing Coca-Cola Bottling Co., 445 P.2d 797 (Okl. 1968); unwholesomeness of thread-like objects in bottle of soft drink was jury question, Perez v. Glens Falls Coca-Cola Bottling Co., 30 A.D.2d 755, 291 N.Y.S.2d 198 (1968); bottle containing foreign matter which appeared to be pieces of cigar, raised jury question, Gardner v. Sumner, 40 Ala.App. 340, 113 So.2d 523 (1959); burnt match or other piece of wood, jury question, Jasper Coca Cola Bottling Company v. Breed, 40 Ala.App. 449, 115 So.2d 126 (1959); brown substance stuck to sides and bottom of bottle held sufficient, Machuga v. Coca-Cola Bottling Co., 153 N.E.2d 713 (Ohio App. 1957). Also see 52 A.L.R.2d 159.

Adulterated food was defined in A.R.S. Sec. 36-902 (the pertinent statute in 1968) as food with which "a substance has been mixed or packed therewith, .... injuriously affecting its.... purity ...." or food which "consists wholly or partially of a filthy, decomposed or putrid .... substance .... ." Added Laws 1971. Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969) holds that a violation of a state pure food and drug act is negligence per se. Also see cases collected in Anno. 52 A.L.R. 2d 117, 143 [13] (§ 12). Upon consideration of the authorities and the evidence, we are satisfied that the evidence was sufficient to present a jury question on the deleterious quality of the drink.

On the question of whether the condition of the beverage was substantially unchanged from the time it left the bottler, we find the following testimony highly relevant. Lillian Slonsky testified that a man from the bottling company came by and "... looked at the bottle and he mentioned that it appeared to be ... a clip that holds the hoses or something. And it may — the hoses that the Fresca goes through, and it may have gotten into the bottle somehow...." This, together with the testimony that (1) the bottle appeared to be properly sealed and nothing out of the ordinary was noticed concerning the cap or the bottle, (2) the loading of the machine was done by (beauty salon) personnel and (3) no one was observed tampering with the bottles, appears to adequately establish that the soft drink was in substantially the same condition at the time of consumption as when it left the bottler.

The judgment is reversed.

KRUCKER, C.J., and, HOWARD, J., concur.

NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E.

6 Cal.2d 674 (1936)

Fred A. Steiner and W. W. B. Seymour for Appellant.

Sanders & Jacques for Respondents.

Mark M. Cohen and Irwin M. Fulop, as Amici Curiae on Behalf of Respondents.

CURTIS, J.

This is an appeal on the judgment roll alone from a judgment in favor of defendants in an action brought against them by plaintiff for damages for personal injuries resulting from the swallowing of a fragment of chicken bone contained in a chicken pie sold and served by the defendants to plaintiff in a public restaurant conducted by them.

Two causes of action were separately alleged in plaintiff's complaint, one for damages for injuries resulting from an alleged breach of an implied warranty, the other for personal injuries resulting from the alleged negligence of defendants and their servants in the preparation and serving of the chicken pie. A general and a special demurrer was sustained by the trial court without leave to amend, and upon motion of defendants the trial court entered its judgment of dismissal of both causes of action. The basic question, therefore, presented is whether or not either or both of the counts state a cause of action.

The facts upon which the action is based upon either theory, as alleged in the complaint, may be summarized as [676] follows: On December 17, 1932, plaintiff entered the confectionery shop and restaurant conducted and operated by the Ingersoll Candy Company, a corporation, and John G. Beck, defendants herein, seated himself at a table, and purchased and paid for an article of food known as chicken pie. It was served to him by one of the employees of the defendants, and eaten by him in the restaurant. According to the allegations of plaintiff's complaint, the chicken pie so served contained "a dangerous, harmful and injurious subject, to-wit, a sharp and pointed fragment and/or sliver of chicken bone, which might be and was highly injurious to anyone eating said chicken pie". The plaintiff unknowingly swallowed the fragment of chicken bone, and "was severely injured and suffered great bodily pain and anguish". By the action he sought to recover damages in the sum of $10,000.

It is apparent that the first count attempts to state a cause of action for breach of the implied warranty established by subdivision 1 of section 1735 of the Civil Code which was enacted in 1931 as a part of the Uniform Sales Act. Said provision is as follows: "Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

[1] The first question, therefore, squarely presented is: Does the transaction between a restaurant keeper and a guest constitute a sale to which an implied warranty attaches under section 1735 of the Civil Code?

We are satisfied that logically the answer must be in the affirmative. It was definitely determined in the recent case of Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 PaCal.2d 708], that upon the sale of foodstuff by a retail dealer to a purchaser for human consumption, an implied warranty arose that the commodity was reasonably fit for such purpose and the dealer could be held [677] liable for damage suffered as the result of eating the foodstuff (in that case, salami), which was not reasonably fit for human consumption. We can see no legal or logical difference between the sale of food by a grocer, in which case the warranty clearly exists, and a sale of a meal by a restaurant keeper. It is argued, however, that in the case of a restaurant keeper or lunch counter proprietor the transaction constitutes not a sale of goods but the furnishing of services, and this being so, as section 1735 of the Civil Code has reference only to a sale of goods, said section has no application to such a transaction. It follows that the problem presented is primarily this: When food is served in a restaurant, does the transaction constitute a sale of food, or is it a sale of service?

It must be conceded that there is considerable authority for the position that a restaurant keeper does not sell the food which he serves his customers. Among the leading cases cited in support of this theory are: Travis v. Louisville & N. R. R. Co., 183 Ala. 415 [62 So. 851]; Merrill v. Hodson, 88 Conn. 314 [91 Atl. 533, Ann. Cas. 1916D, 917, L.R.A. 1915B, 481]; Roseberry v. Wachter, 33 Del. 253 [138 Atl. 273]; Rowe v. Louisville & Nashville R. R. Co., 29 Ga. App. 151 [113 S.E. 823]; Kenny v. Wong Len, 81 N. H. 427 [128 Atl. 343]; Nisky v. Childs Co., 103 N. J. L. 464, 465 [135 Atl. 805, 50 A.L.R. 227]; Bigelow v. Maine Cent. R. Co., 110 Me. 105 [85 Atl. 396, 43 L.R.A. (N. S.) 627]; Valeri v. Pullman Co., 218 Fed. 519. It will thus be seen that Alabama, Connecticut, Delaware, Georgia, Maine, New Hampshire, New Jersey, and the federal courts adhere to the theory that the transaction constitutes a sale of services and not a sale of food.

On the other hand, there are decisions of other states, which we consider better reasoned, which have come to the conclusion that there is no fundamental difference between the sale of food by a dealer and a sale of a meal by a restaurant keeper. The leading case so holding is the case of Friend v. Childs Dining Hall Co., 231 Mass. 65 [120 N.E. 407, 5 A.L.R. 1100]. In that case the Massachusetts Supreme Court reached the conclusion that, under the Massachusetts Sale Act, which is similar to section 1735 of the California Civil Code, such a transaction constituted a sale of food, and by reason of such fact an implied warranty [678] existed on the part of a restaurant keeper that the food so sold and served was reasonably fit for human consumption. Later cases in the same jurisdiction uphold this doctrine. (Barringer v. Ocean S. S. Co., 240 Mass. 405 [134 N.E. 265], and Smith v. Gerrish, 256 Mass. 183 [152 N.E. 318].)

The rule is the same in New York. (Temple v. Keeler, 238 N.Y. 344 [144 N.E. 635, 35 A.L.R. 920]; Rinaldi v. Mohican Co., 225 N.Y. 70 [121 N.E. 471]. See, also, Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F, 1172], Muller v. Childs Co., 118 App. Div. 881 [171 N.Y. Supp. 541], and Barrington v. Hotel Astor, 184 App. Div. 317 [171 N.Y. Supp. 840].) In Illinois, Indiana and in Missouri the intermediate courts have arrived at the same conclusion. (Greenwood v. John R. Thompson Co., 213 Ill. App. 371; Smith v. Carlos, (Mo. App.) 247 S.W. 468; Heise v. Gillette, 83 Ind. App. 551 [149 N.E. 182].)

Defendants argue that it is the established law of California that when the owner of a restaurant furnishes food to a customer he merely furnishes services of which food is a part, and cites Loucks v. Morley, 39 Cal.App. 570 [179 P. 529], and Stell v. Townsends California Glace Fruits, Inc., 138 Cal.App. Supp. 777 [28 PaCal.2d 1077], in support of this contention. The case of Loucks v. Morley, supra, involved the construction of code section 1775 of the Civil Code, since repealed, which imposed an implied warranty upon "one who makes a business of selling provisions for domestic use". The grounds of the decision were twofold, namely, that a restaurant keeper furnishes service to his patrons rather than sells provisions, and that the furnishing of food for immediate consumption upon the premises was not strictly and accurately within the definition of the term, "for domestic use". The first conclusion was based upon the old common-law reasoning, as expressed in the quaint phrase with reference to innkeepers and victualers, quoted in Beal on Innkeepers and Hotels, section 169, and reiterated in practically all of the cases adhering to the old rule, "He does not sell but utters his provisions." The second conclusion was based upon the fact that the dictionary defined "domestic" as "belonging to the house or household; concerning or relating to the home or family", and the fact that the word itself, in its [679] derivation from "domus", a house, suggested its inherent import. By this reasoning, it was decided that "for domestic use", necessarily meant for use in the home. The two associates of the writer of the opinion concurred only in the judgment, and by setting forth as their reason for such concurrence the second ground of the opinion, in effect withheld their approval of the first ground. It is apparent, therefore, that this reason became thereby only the personal opinion of the justice who wrote the opinion. Such conclusion cannot, therefore, have any controlling weight here. It should perhaps be noted that section 1775 of the Civil Code upon which the case of Loucks v. Morley, supra, was based was repealed prior to the time the cause of action in the instant case arose, and section 1735 of the Civil Code is now the section which controls the question of implied warranty of the quality of food served by restaurants.

The case of Stell v. Townsends California Glace Fruits, Inc., supra, which is a decision of the appellate division of the Superior Court of the City and County of San Francisco, was based solely on the question of negligence, and the real point was whether or not negligence had been proven. The decision expressly states, "The complaint in the present case, however, is not based upon a breach of warranty or on any contractual liability. It charges commission of a tort in the alleged failure of the defendant to use reasonable care in selecting, preparing, and serving food for consumption by plaintiff as a patron." It is obvious, therefore, that what is said in the decision with reference to implied warranty was unnecessary to the opinion and is clearly dicta.

One other California case has been cited as pertinent to this question, the case of San Francisco v. Larsen, 165 Cal. 179 [131 P. 366]. That action was for the recovery of a license tax imposed on defendant under an ordinance. The city charter then in effect exempted from paying such tax, "any person who at any fixed place of business in the city and county, sells or manufactures goods, wares and merchandise". Although the court reached the conclusion that the business of a restaurant keeper was not exempt from the levy of the license tax under the provisions of the charter, it made the following statement: "It cannot be denied that the eating of food by a customer at a restaurant, [680] in the regular course of business, involves a sale of the food eaten. The price of the food alone is usually not specified, but it is included in a lump sum with the charge for services and use of its dishes, chair, and table. It is nevertheless a sale of the food consumed, within the technical definition of that term."

We therefore hold unequivocally that the transaction between a restaurant keeper and customer constitutes a sale and that as a necessary incident to such sale there exists an implied warranty which imposes upon the restaurant keeper the obligation to furnish to patrons food "reasonably fit" for human consumption, and that if a patron suffer injury as a result of eating food which is not reasonably fit for human consumption, the retaurant keeper is liable in damages therefor.

[2] No contention is made that plaintiff could not recover on the count of negligence if it has been properly pleaded and proved. In fact, such liability is expressly conceded by the arguments of defendants which are to the effect that no liability exists under the theory of implied warranty, but that the restaurant keeper's obligation is limited to the exercise of due care in the preparation and service of food furnished guests. It was held in the case of Stell v. Townsends California Glace Fruits, Inc., supra, that a duty of exercising due care in the furnishing and serving of food to guests exists on the part of a restaurant keeper, and that he is liable in damages for any breach of such duty. In Massachusetts, it is recognized that a cause of action may be predicated upon either the theory of an implied warranty or upon negligence. (Friend v. Childs Dining Hall Co., supra; Ash v. Childs Dining Hall Co., 231 Mass. 86 [120 N.E. 396, 4 A.L.R. 1556].) It follows that the plaintiff was justified in including both counts in his complaint.

Defendants claim that regardless of whether or not the plaintiff correctly included in his complaint a cause of action based upon the theory of implied warranty and a cause of action based upon negligence, the trial court was justified in sustaining a demurrer to both counts for the reason that in neither count was the cause of action properly pleaded. Defendants complain that in both counts material allegations were lacking. Although we are of the opinion that both counts of the complaint might well have been pleaded [681] with more particularity, we prefer to rest our decision upon the broader ground that the facts stated in both counts of the complant were insufficient on which to base an action no matter how the pleading was drawn.

[3] We will first discuss the question of whether or not the facts pleaded in the first count were sufficient to support a judgment based upon an implied warranty. Bearing in mind the exact wording of section 1735 of the Civil Code whereby the implied warranty is imposed upon a restaurant keeper, is there an obligation imposed by the statute upon a restaurant keeper to furnish perfect food to his patrons at all hazards; that is to say, is his obligation that of an absolute insurer of his food? The answer, in our opinion, must be in the negative. The words of the code section are that the food furnished by the restaurant keeper shall be "reasonably" fit for such purpose,--human consumption. It may well happen in many cases that the slightest deviation from perfection may result in the failure of the food to be reasonably fit for human consumption. On the other hand, we are of the opinion, that in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption. [4] The facts presented in the instant case we think present such a situation. We have examined a great many cases dealing with the question of the liability of restaurant keepers which arose out of the serving of food which was held to be unfit for human consumption, and we have failed to find a single case in which the facts are similar to the instant case, or in which a court has extended the liability based upon an implied warranty of a restaurant keeper to cover the presence in food of bones which are natural to the type of meat served. All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables. [5] Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably [682] fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie. In the case of Goetten v. Owl Drug Co., L. A. No. 15624 (post, p. 683 [59 PaCal.2d 142]), this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed. This is true, but we do not believe that the onerous rule should be carried to absurd limits. Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone--although it be admitted that an ideal cherry pie would be stoneless. The case of a chicken bone in a chicken pie is, in our opinion, analogous to the cited examples, and the facts set forth in the first count of the complaint do not state a cause of action.

[6] With reference to the count based upon negligence, the same logic and reasoning apply. The facts pleaded do not establish a lack of due care on the part of the restaurant [683] keeper. We do not believe it is a question of contributory negligence on the part of the customer, but a question of whether or not a restaurant keeper in the exercise of due care is required to serve in every instance a perfect chicken pie, in that all bones are entirely eliminated. If the customer has no right to expect such a perfect product, and we think he is not so entitled, then it cannot be said that it was negligence on the part of the restaurant keeper to fail to furnish an entirely boneless chicken pie. The facts set forth in the second count do not, therefore, state a cause of action.

The logic of our decision with reference to both counts of the complaint leads to an affirmance of the trial court in sustaining the demurrer to both counts of the complaint and the entry of judgment in favor of the defendants.

The judgment is affirmed.

Shenk, J., Thompson, J., Seawell, J., Waste, C.J., and Langdon, J., concurred.

256 S.C. 162 (1971)
181 S.E.2d 478

[163] Messrs. Lumpkin & LaFaye, of Columbia, for Defendant-Appellant.

[164] Messrs. Luther M. Lee, and Dallas D. Ball, of Columbia, for Respondent.

May 27, 1971.

LEWIS, Justice.

Plaintiff recovered judgment in the County Court of Richland County against defendant, Coca-Cola Bottling Company of Columbia, Inc., for actual damages in the amount of $700.00, allegedly sustained when she consumed certain deleterious matter from a bottled drink prepared and sold by defendant under the name of Fresca. Defendant had appealed from the denial of its motion for judgment notwithstanding the verdict and for a new trial.

The only question necessary to be considered is whether the trial judge erred in refusing appellant's motion for a directed verdict upon the ground that there was no proof to sustain a finding that the alleged injury of respondent was proximately caused by any negligence of the appellant. Assuming that negligence on the part of appellant has been shown, respondent would not be entitled to recover unless such negligence caused or contributed to her injury. Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E. (2d) 572.

The evidence touching the foregoing issue, viewed most favorably to respondent, shows that she purchased, on May 12, 1969, a carton of six bottles of soft drink, known as Fresca, from a merchant whose business is located near the City of Columbia, South Carolina. She carried the carton of drinks to her home in Columbia and shortly thereafter opened one of the bottles. Her testimony was that it had not been previously opened. After she had consumed about [165] three swallows from the bottle, she detected an "odd, powdery, flat" taste. Upon examining the remaining contents, she found that it contained a small "wad" of some type foreign substance. She then called her husband who immediately carried the bottle and showed it to the groceryman from whom it was purchased. In about two hours after drinking from the bottle of Fresca, respondent became nauseated, which was followed later by diarrhea and chest pains.

Respondent did not consult a physician until the following day, when she was given some medication and hospitalized for tests, apparently to determine any connection between her heart and the pains she was experiencing in her chest. She had never experienced chest pains, nor this type illness before.

The doctor who treated and examined the respondent did not testify, but a written report by him of the illness was placed in evidence. This report gives no opinion as to the cause of respondent's sickness.

To establish a causal connection between the drinking of the Fresca and her subsequent illness, respondent relies upon her testimony that (1) in about two hours after taking about three swallows from the bottle, she became ill; and (2) she had never suffered an illness of this type before. In other words, respondent contends, in effect, that since her illness followed the consumption of the contaminated drink, an inference arises that it was a proximate cause of the illness.

It is frequently held that a showing of symptoms of illness shortly following the drinking of a contaminated beverage is sufficient to make a jury issue on causal connection. In order for such inference to arise, however, there must appear a reasonable basis upon which to conclude that the subsequent illness was the natural and probable consequence of drinking the contaminated beverage, so that the connection between the two is not left to conjecture or speculation. While the time interval between the consumption of the beverage and the subsequent illness is [166] not necessarily controlling, Harrison v. Berkley, 1 Strob. 525, it is of significance in determining the probability of the intervention of some other cause to which the illness or damage might as reasonably be attributed. The connection may become speculative and conjectural if the time interval is not immediate and there is no showing that because of the nature of the illness and damage it, at least, most probably resulted from the alleged cause. The application of the "most probably" rule in tort actions was discussed in Gambrell v. Burleson, 252 S.C. 98, 165 S.E. (2d) 622.

We find no evidence in this record from which a reasonable inference may be drawn that respondent's illness was the proximate result of drinking the alleged contaminated beverage. Since no analysis was made, the chemical properties of the contents of the bottle are not known. The first symptom (nausea) did not occur until about two hours later. There was no medical testimony as to the cause of the illness and common experience shows that the illness suffered by respondent (nausea, diarrhea, etc.) often occurs from other causes. See: Fowler v. Coastal Coca-Cola Bottling Co., supra, 252 S.C. 579, 167 S.E. (2d) 572. In view of the nature of the illness, the lapse of two hours before the first symptoms appeared renders the sequence of events too remote, absent other testimony, upon which to base a finding of causal connection.

It follows that the trial judge was in error in refusing appellant's motion for a directed verdict. Judgment is accordingly reversed and the cause remanded for entry of judgment in favor of appellant (defendant).

MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur.

589 N.E.2d 547 (1992)
147 Ill.2d 408
168 Ill.Dec. 147

[548] Marc A. Lapp, of Burroughs, Simpson, Hepler, Broom & Macdonald, Edwardsville, for appellant.

William A. Mudge, of Lucco, Brown & Mudge, Edwardsville, for appellee.

Justice FREEMAN, delivered the opinion of the court:

Appellant, Nestle-Beich, Inc. (Nestle), appeals the decision of the appellate court reversing the grant of summary judgment in its favor in a personal injury action brought by appellee, Elsie M. Jackson (Jackson). (212 Ill.App.3d 296, 155 Ill.Dec. 508, 569 N.E.2d 1119.) We affirm.

FACTUAL BACKGROUND

In May 1988, Jackson purchased a sealed can of Katydids, chocolate-covered, pecan and caramel candies manufactured by Nestle. Shortly thereafter, Jackson bit into one of the candies and allegedly broke a tooth on a pecan shell embedded in the candy. As a result, Jackson filed a complaint asserting breach of implied warranty (count I) and strict products liability (count II) against Nestle.

Nestle moved for summary judgment on the basis of the foreign-natural doctrine. That doctrine provides that, if a substance in a manufactured food product is natural to any of the ingredients of the product, there is no liability for injuries caused thereby; whereas, if the substance is foreign to any of the ingredients, the manufacturer will be liable for any injury caused thereby. Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 59 P.2d 144 (chicken bone in chicken pie); Goodwin v. Country Club of Peoria (1944), 323 Ill.App. 1, 54 N.E.2d 612 (turkey bone in creamed turkey dish).

In granting Nestle's motion, the trial court concluded that Illinois law is "that a food product is not rendered unwholesome by reason of inclusion therein of a substance natural to an ingredient" of the product.

In reversing, the appellate court thoroughly reviewed the rationales underlying the foreign-natural doctrine and the reasonable expectation test, which is applied in certain jurisdictions. The reasonable expectation test provides that, regardless whether a substance in a food product is natural to an ingredient thereof, liability will lie for injuries caused by the substance where the consumer of the product would not reasonably have expected to find the substance in the product. See, e.g., Zabner v. Howard Johnson's, Inc. (Fla.App.1967), 201 So.2d 824 (walnut shell in maple walnut ice cream).

The appellate court concluded "that the foreign-natural doctrine originally set forth in Mix and adopted * * * in Goodwin should not be followed." (212 Ill.App.3d at 305, 155 Ill.Dec. 508, 569 N.E.2d 1119.) The court determined that the doctrine was based on the faulty assumption that consumers know that prepared food products will or might contain whatever any of their ingredients, in a natural state, contain. Ultimately, [549] the court held that the naturalness of the harmful ingredient of a food product does not absolutely bar recovery but is only one factor to be considered in determining whether the presence of the ingredient breached a warranty or rendered the product unreasonably dangerous. (212 Ill.App.3d at 306, 155 Ill.Dec. 508, 569 N.E.2d 1119.) We agree with the appellate court's conclusion that the foreign-natural doctrine is unsound and should be abandoned.

NESTLE'S ARGUMENTS

In appealing the appellate court's decision, Nestle first asserts that the decision "has, in practice, created a strict liability situation[]" because the court "failed to change the general test" for determining the existence of a breach of warranty with respect to food products, viz., the presence of foreign matter in the food or its diseased, decayed or otherwise spoiled and poisonous condition. (32 Ill.L. & Prac. Sales § 152, at 463 (1957).) Nestle reasons that if, as the appellate court held, the naturalness of the harmful ingredient does not bar recovery, its mere presence will henceforth breach the warranty.

We are somewhat perplexed by Nestle's assertion that the appellate court failed to change the test of breach of warranty, with respect to food products, in light of Nestle's conclusion that, as a result of the court's decision, naturalness, the linchpin of that test, will no longer bar recovery. We would ask Nestle how that can be unless the appellate court's decision effectively changed the test. In addition, we find that test, as stated in Illinois Law & Practice, simply of no assistance to Nestle. That work cites Goodwin and it is the continuing validity of Goodwin which is at issue here.

Although not explicitly, the appellate court's decision does, effectively, establish the same test for both breach of warranty and strict products liability claims in food cases, as Nestle appears to argue. That test is the reasonable expectation of the consumer with respect to the ingredients of the food product involved. However, Nestle offers no sound argument for holding that the appellate court could not do so. Therefore, we find this line of argument completely unavailing to Nestle.

Nestle further asserts that the appellate court's decision "fails to acknowledge that the unique situation of natural food hazards is worthy of treatment different than other products[] * * * by applying the foreign-natural doctrine, reasonable expectation test or some hybrid of the two[]" because "perfection in removing naturallyoccurring substances is impossible on each and every occasion."

We do not find this argument to be a valid criticism of the appellate court's opinion. In so arguing, Nestle itself fails to acknowledge that the appellate court effectively adopted the reasonable expectation test as the measure of the viability of both breach of warranty and strict products liability claims in food cases. That is, the appellate court's decision does treat manufacturers such as Nestle differently than manufacturers of other products.

The crux of Nestle's arguments on appeal is that we should adopt the Louisiana version of the foreign-natural doctrine. In Louisiana, if injury is caused by a foreign substance in a food product, the manufacturer is subject to being held strictly liable. In contrast, if the substance causing injury is natural to the product or its ingredients, the manufacturer may be held liable only if the presence of the substance resulted from its negligence in the manufacture of the product. Title v. Pontchartrain Hotel (La.App.1984), 449 So.2d 677; Musso v. Picadilly Cafeterias, Inc. (La.App.1965), 178 So.2d 421.

We decline Nestle's invitation to adopt the Louisiana version of the foreign-natural doctrine in place of the reasonable expectation test. We agree with Jackson that the Louisiana approach comes too close to the outdated and discredited doctrine of caveat emptor.

Moreover, contrary to Nestle's implication in arguing for the adoption of Louisiana's approach, the appellate court's decision in the instant case is not the first to extend the modern-day doctrine of strict [550] liability to food products in Illinois. In Warren v. Coca-Cola Bottling Co. (1988), 166 Ill.App.3d 566, 117 Ill.Dec. 30, 519 N.E.2d 1197, the court recognized that causes of action for breach of implied warranty, strict products liability and negligence properly lay against the manufacturer of an article of food or drink intended for human consumption and sold in a sealed container. Accordingly, the decision in the instant case does not impose burdens upon manufacturers of food products sold or used in Illinois which they have not previously borne.

Additionally, we must reject the underlying theme of Nestle's appeal. Nestle asserts that manufacturers of food products whose manufacture involves a risk that harmful matter which is natural to any of their ingredients will not be eliminated from the finished product should be exempted from strict liability due to the difficulty of eliminating such matter.

Preliminarily, we would note that this argument is essentially an argument for recognizing a state of the art defense in food product cases. However, in Illinois the state of the art has never been a defense to strict products liability. Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill.App.3d 508, 79 Ill.Dec. 914, 464 N.E.2d 818; Gelsumino v. E. W. Bliss Co. (1973), 10 Ill.App.3d 604, 295 N.E.2d 110.

Moreover, we do not find that manufacturers of products such as Nestle describes serve so important a public service that they merit treatment substantially different from that of manufacturers of other products. In this regard, we believe the consumer's reasonable expectation as to the contents of food products, as the gauge of strict liability, adequately balances consumers' interest in defect-free products and such manufacturers' interest in reasonable costs of doing business.

With an awareness of that test, consumers and their attorneys need ask themselves only one question before deciding to bring an action of this type: Would a reasonable consumer expect that a given product might contain the substance or matter causing a particular injury? If the answer is in the affirmative, we would expect that consumers and their attorneys would think twice about suing the manufacturer. Similarly, with an awareness of that test, manufacturers can act accordingly with respect to their means of production. Additionally, if the answer to the foregoing question is in the negative, we would expect that manufacturers and their attorneys would think twice about declining to offer a settlement of this type of action. The test thus provides a reasonable and concrete standard to govern actions of this sort.

Moreover, we believe that the fact that the reasonable expectation test comports with the rationale underlying strict products liability strongly recommends the test as the dispositive inquiry in this type of case. That rationale provides that an allegedly defective product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. (Restatement (Second) of Torts § 402A, Comment i, at 352 (1965).) The similarity between the language of the reasonable expectation test and the Restatement is striking and strongly recommends the former as the rule of decision in this type of case.

Nestle further argues that a fundamental basis of strict products liability, viz., that manufacturers who create risks posed by a defective product and who reap a profit by placing it in the stream of commerce should bear the losses caused thereby, does not apply in this case. That principle does not apply, Nestle reasons, because the manufacturer of natural food products does not create the risk. Rather, the risk is created by nature and all a manufacturer can do is its best to minimize the risk. We find this reasoning unpersuasive.

In so arguing, Nestle ignores that strict liability, in theory, is intended to apply to all products placed in the stream of commerce regardless whether they have undergone some processing or not. Accordingly, a supplier of poisonous mushrooms which are neither cooked, canned, packaged nor otherwise treated is subject [551] to strict liability. (Restatement (Second) of Torts § 402A, Comment e, at 350 (1965).) If such a supplier would be strictly liable for injuries caused by its product, we see no reason why Nestle should not be. Both would have sold a product which injured a consumer as a result of an aspect of the product's or an ingredient's natural state. In the mushroom supplier's case, that aspect would be their poisonousness. In Nestle's case, that aspect would be that the meat of pecans, an ingredient of Katydids, is found inside a hard shell. That Nestle actually processes the ingredients in its product before placing it in the stream of commerce and thereby has some opportunity to discover and eliminate the risk of injury posed by its ingredients, unlike the seller of poisonous mushrooms, actually militates in favor of, rather than against, imposing strict liability against Nestle.

Furthermore, we do not believe that Nestle's product merits inclusion in that group of products "which, in the present state of human knowledge," are "incapable of being made safe for their intended and ordinary use," i.e., unavoidably unsafe products, and which are not subject to strict liability. Simply put, Nestle's product lacks the social utility of those products which justifies their exemption from such liability. Restatement (Second) of Torts § 402A, Comment k, at 353 (1965); cf. Ill. Rev.Stat.1989, ch. 111½, par. 5101 et seq. (exempting from strict liability those engaged in, inter alia, procuring, furnishing, processing, or distributing human whole blood, plasma, blood products, blood derivatives and products, corneas, bones, organs or other human tissue for the purpose of injection, transfusion, transplantation in the human body).

Nestle also argues that two other rationales for strict products liability, viz., that consumers cannot adequately protect themselves from defective products and that manufacturers such as Nestle are in a better position to identify and guard against potential defects, are inapplicable in this case. We disagree.

Rather than imposing an obligation upon consumers of Nestle's product to protect themselves by "think[ing] and chew[ing] carefully," we believe that the obligation of protection is better placed on Nestle and like manufacturers. In this regard, we agree with the following observation:

"With the prevalence of processed foods on the market today and the development of technology in the food industry, consumers increasingly rely upon food processors to inspect and purify the foods they consume. Many products today are even packaged in such a manner that inspection by the consumer is difficult if not impossible. One might imagine a consumer in a jurisdiction that applies the foreign-natural test tearing away the crust from a beef pot pie to search for tiny bones, or picking apart a cherry-nut ice cream cone to remove stray shells or pits.

In an era of consumerism, the foreign-natural standard is an anachronism. It flatly and unjustifiably protects food processors and sellers from liability even when the technology may be readily available to remove injurious natural objects from foods. The consumer expectation test, on the other hand, imposes no greater burden upon processors or sellers than to guarantee that their food products meet the standards of safety that consumers customarily and reasonably have come to expect from the food industry." Note, Products Liability— The Test of Consumer Expectation for "Natural" Defects in Food Products, 37 Ohio St.L.J. 634, 651-52 (1976).

With respect to Nestle's argument that it is in no better position than consumers of its Katydids to identify the risks associated therewith, we disagree that the common knowledge that pecans are hard-shelled nuts makes it common knowledge that processed foods containing pecan meats may also contain pecan shell. Moreover, contrary to Nestle's assertion, we do not believe that "the practical difficulties of food separation are common knowledge" to all consumers. As a result, we do not believe that consumers of its Katydids must be required to "think and chew carefully" when consuming them.

[552] Nestle further argues that another of the rationales for strict liability, the difficulty of proving negligence, can be satisfied here by requiring the manufacturer to prove its freedom from negligence, as is done in Louisiana. We disagree.

Even if we had no doubt that that is the approach taken in Louisiana, we do not believe its adoption in Illinois would be salutary to our jurisprudence. We do not believe it wise to begin carving out exceptions to strict products liability by placing upon manufacturers a burden of proving freedom from negligence. If we were to find Nestle entitled to such treatment, we would be hardpressed to reject the arguments of any manufacturer for similar treatment. Eventually, the exceptions would swallow the rule of strict liability. We cannot countenance such a possibility.

Lastly, Nestle argues that another of the rationales for strict liability, viz., that it is more effective than negligence liability in inducing the manufacture of safer products, also does not apply here given the nature of the product involved. We disagree.

Even under the reasonable expectation test of strict liability we approve in this case, manufacturers, such as Nestle, of products posing the risk involved in this case can take one simple and relatively inexpensive step to make their products safer and to avoid liability for injuries caused thereby. Specifically, they can place an adequate warning to the consumer on their product's container of the possibility or risk of injury posed thereby. (Restatement (Second) of Torts § 402A, Comment j, at 353 (1965).) The relative ease with which such a measure may be taken also militates in favor of holding manufacturers of such products subject to strict liability in the absence thereof.

In this regard, we note that, even if we agreed with Nestle that its Katydids merit classification as an unavoidably unsafe product, we would nonetheless find it subject to strict liability due to the absence of a warning of the unavoidable risk of injury it posed. See Restatement (Second) of Torts § 402A, Comment k, at 353 (1965) (an unavoidably unsafe product is not defective or unreasonably dangerous when properly prepared and accompanied by proper directions and warning).

For all of the reasons stated herein, we affirm the judgment of the appellate court.

Appellate court affirmed.

Justice HEIPLE, dissenting:

The majority decision overturns the long-standing doctrine in Illinois regarding the sale, purchase and consumption of food products. Since 1944, Illinois has followed the so-called foreign-natural doctrine. (Goodwin v. Country Club of Peoria (1944), 323 Ill.App. 1, 54 N.E.2d 612.) Stated in its simplest terms, the foreign-natural doctrine provides that the vendor of food is not liable for injuries due to unremoved but naturally occurring ingredients such as nut shells, fruit pits, fish bones and so forth but is liable for foreign objects in the food such as glass shards or pieces of metal. The majority opinion in the instant case discards the foreign-natural doctrine and substitutes the reasonable expectation test. In its essence, that test provides that the vendor of a food product is liable for injuries caused by an ingredient in the food whether natural or foreign whenever the consumer of the product would not reasonably have expected to find the substance in the product.

In truth, the reasonable expectation test is what gave rise to the foreign-natural doctrine. That is to say, since it would be reasonable to expect to find a nut shell in a product containing nuts, there would be no liability. Rather than approach each broken tooth or other injury on a case-by-case basis, it was deemed more expeditious and efficient to crystallize the matter into the foreign-natural doctrine. That doctrine both did justice and promoted judicial economy.

A reversion to the reasonable expectation test simply means that each food-related injury in this State will be subject to a lawsuit to determine whether the consumer's reasonable expectation was violated. The costs will be significant, first to the [553] manufacturers and second to the consuming public. It is axiomatic that all production costs eventually end up in the price of the product. Additionally, if the costs exceed profitability, the product leaves the market place altogether and the consumers lose choice, selection and availability of products.

The effects of this decision will go far beyond the defendant Nestle-Beich Company, whose candy caused a broken tooth. It extends to all manufacturers and purveyors of food products including the neighborhood baker, the hot dog vendor and the popcorn man. Watch out Orville Redenbacher!

The continued march towards strict and absolute liability for others (others meaning anyone not injured who has assets) and the absence of any responsibility by the injured for their own welfare takes yet another step with this majority ruling. Accordingly, I dissent.

517 A.2d 706 (1986)

[707] I. Barry Guerke and Bonnie M. Benson of Parkowski, Noble & Guerke, Dover, for plaintiffs.

James W. Semple and Francis J. Jones, Jr. of Morris, James, Hitchens & Williams, Wilmington, for defendant Kenton Ruritan Club, Inc.

B. Wilson Redfearn and Beth H. Christman of Tybout, Redfearn, Casarino & Pell, Wilmington, for defendant Smyrna Meat Markets.

RIDGELY, Judge.

The matter presently before the Court involves motions for summary judgment by defendants Kenton Ruritan Club, Inc. ("Kenton") and Smyrna Meat Market ("Meat Market") against plaintiffs, James and Jean Ann Trabaudo ("Mr. and Mrs. Trabaudo"). Mr. and Mrs. Trabaudo allege in this action that Mr. Trabaudo contracted trichinosis as a result of eating pork sausage made and sold by Kenton, which had previously purchased raw pork from Meat Market in order to make the sausage.

On March 18, 1982, Mrs. Trabaudo bought three pounds of pork sausage from a member of Kenton, a community organization in the practice of selling sausage to raise money for college scholarships. In order to transform the raw pork which it had purchased from Meat Market into pork sausage, Kenton seasoned it with herbs, ground it into sausage, and then sold the product in partially waxed meat paper, sealed with tape and bearing only a notation of the weight of the package.

Mrs. Trabaudo claims that on the morning of March 20, 1982, she made patties out of the pork sausage and cooked them in an electric skillet at 400° F, until the water in the skillet boiled away and the patties were brown. Approximately one and one-half hours later, Mr. Trabaudo consumed one pattie sandwich. Mr. Trabaudo became ill one week later and was hospitalized from April 8 to April 18, 1982. A diagnosis of trichinosis was subsequently confirmed, as was a high trichinae larvae count in both frozen and unfrozen samples of pork sausage taken from plaintiffs' home.

Plaintiffs contend that defendants were negligent in failing to inspect the pork for trichinae and in failing to warn them of the danger of eating raw pork and the methods available to render it safe. Additionally, plaintiffs claim that defendants breached an implied warranty of fitness and violated the Uniform Deceptive Trade Practices Act, 6 Del.C. §§ 2531-2536, by misrepresenting the pork sausage as being wholesome. Finally, plaintiffs assert that defendants' sale of "adulterated" food constituted a violation of the Pure Food and Drug Act, 16 Del.C. ch. 33.

Defendants respond that, as a matter of law, they possessed no duty to inspect the pork for trichinae nor to warn consumers of potential danger since it was common knowledge that proper cooking will destroy trichinae larvae. Defendants further submit that the only representation made was that the sausage was fit for human consumption if cooked properly, and they argue that fresh pork containing trichinae is not considered unwholesome or adulterated under Pure Food statutes.

I.

On a motion for summary judgment, the Court's function is to determine whether there are any genuine issues of material fact. If, after viewing the record in a light most favorable to the nonmoving party, the Court finds there are no genuine issues of material fact, summary judgment will be appropriate. Pullman, Incorporated v. Phoenix Steel Corporation, Del.Super., 304 A.2d 334 (1973); Moore v. Sizemore, Del.Supr., 405 A.2d 679 (1979).

The element of duty in a negligence action is generally considered to be an issue of law for the Court to decide. O'Connor v. Diamond State Telephone Co., Del.Super., 503 A.2d 661 (1985). In resolving the question of whether sellers of raw pork have a duty to inspect for trichinae and to warn consumers of potential danger, courts have considered "whether the magnitude of [708] the risk of the retailers' or packers' not inspecting or treating fresh pork for destruction of trichinae justifies the burden imposed by such an obligation." Popour v. Holiday Food Center, Inc., Mich.App., 140 Mich.App. 616, 364 N.W.2d 764, 767 (1985).

A review of the record in this case, including the testimony of plaintiffs' expert, Dr. Leonard M. Pakman, reveals that no practical, effective method of inspection for trichinae has yet been developed and commonly employed in this country. Dr. Pakman noted that, because the microscopy test inspects only a small sample of the pork, any negative results "could provide a false sense of security." (Dr. Pakman's report, p. 9). The ELISA test recommended by Dr. Pakman only came to his attention in February 1985, and there is no indication in the record that it was utilized in this country or even developed as of 1982.

The only methods of treatment available in 1982 to rid fresh pork of trichinae were freezing and cooking to at least 137° F. The former method, however, precludes pork from being sold as fresh, and knowledge of the latter method has been deemed equally within the purview of the consumer as of the seller. Hollinger v. Shoppers Paradise of New Jersey, Inc., N.J.Super., 134 N.J.Super. 328, 340 A.2d 687 (1975), aff'd, N.J.App.Div., 142 N.J.Super. 356, 361 A.2d 578 (1976); 2A Frumer & Friedman, Products Liability, § 25.04[2] (1976). Additionally, the Court notes that the number of reported cases of trichinosis in the United States each year is approximately 150, and that only one in 11,500 hogs that are examined are found to be infected with trichinae. (Dr. Pakman's report, p. 6); Popour v. Holiday Food Center, Inc., supra.

I conclude that the burden which would be imposed by a seller's obligation to inspect and treat all pork for trichinae is not justified by the relatively small risk to the consumer of contracting trichinosis, particularly when proper cooking will eliminate that risk. Nor should sellers be required to warn consumers of the necessity for proper cooking when the need for such is common knowledge. Huebner v. Hunter Packing Co., Ill.App., 59 Ill.App.3d 563, 16 Ill.Dec. 766, 375 N.E.2d 873 (1978); 96 A.L.R.3d, § 2(a). As noted in Hollinger v. Shoppers Paradise of New Jersey, Inc., 361 A.2d at 578-579:

"It is a scientific fact that the thorough cooking of a pork product to a temperature of 137° F kills trichinae ... The overwhelming majority of cooks routinely cook pork thoroughly, notwithstanding their lack of knowledge of the "magical" 137° F. Considering the fact that the boiling point of water is 212° F, it is readily apparent that this minimum cooking requirement for pork is not too stringent. We deem the approach to this problem as expressed in Nicketta v. National Tea Co., 338 Ill.App. 159, 87 N.E.2d 30 (App.Ct.1949), to be consistent with universal common knowledge of the propensities of pork as well as being the fairer and more sensible rule."

The case relied upon by plaintiffs in support of the proposition that such duties exist, Clouser v. Shamokin Packing Company, Pa.Super., 240 Pa.Super. 268, 361 A.2d 836 (1976), is dissimilar to the one at bar in that the plaintiff in that case contracted trichinosis after eating sausage in a restaurant. Unlike the present case, where it could be expected the consumer would properly cook the sausage, the passive consumer in Clouser had no control over the preparation of the sausage and was justified in relying on the defendants to ensure that either the sausage would be inspected for trichinae or cooked properly to remove trichinae.

Federal regulations provide that fresh pork does not need to be treated for destruction of trichinae since fresh pork is customarily well-cooked before serving. 9 C.F.R. § 318.10(a) (1985). Nonetheless, plaintiffs also assert that 9 C.F.R. § 318.10(b) (1985) imposes a duty upon sellers of raw pork shoulder butts to ensure that they are "effectively heated, refrigerated, [709] or cured to destroy any possible live trichinae...". Such duty does not apply to the present case. Assuming arguendo that plaintiffs purchased pork shoulder butts, section 318.10(b) provides that the above methods of treatment need not be applied unless the pork shoulder butts are sold "in casings or other containers in which ready-to-eat delicatessen articles are customarily enclosed." The catch-all phrase at the end of this paragraph (b) also imposes the duty for "other products consisting of mixtures of pork and other ingredients, which the administrator determines at the time the labeling for the product ... would be prepared in such a manner that the product might be eaten raw or without thorough cooking because of the appearances of the finished product or otherwise." This modifying language makes it clear that section 318.10(b) applies to products which customarily may not be well-cooked before serving and not to the sausage in issue here. Moreover, the marketing of the pork sausage in partially waxed meat paper sealed only with tape does not constitute a "casing" or "container" in which "ready-to-eat delicatessen articles are customarily enclosed." See Scheller v. Wilson Certified Foods, Inc., Ariz.App., 114 Ariz. 159, 559 P.2d 1074 (1976).

II.

Plaintiffs' claim of breach of an implied warranty of fitness must also be dismissed as a matter of law because the scope of the warranty given by a seller of fresh pork is that the product is fit for its ordinary and intended purpose — eating after proper cooking. There is no indication here that the pork was unfit for cooking or that it was "unreasonably dangerous" as that term is used at Restatement (Second) of Torts § 402(a), comment (i) (1965). Huebner v. Hunter Packing Co., supra.

III.

Addressing plaintiffs' contention that sale of the trichinae-infested pork sausage constituted a violation of the Pure Food and Drug Act, 16 Del.C. ch. 33, because the pork was "adulterated" under section 3304(6)^[1]; again, the Court must dismiss plaintiffs' claim as a matter of law. The majority interpretation of nearly identical statutes in other jurisdictions is that they do not encompass the sale of fresh pork. Scheller v. Wilson Certified Foods, Inc., supra; 2A Frumer & Friedman, Products Liability § 25.04[2] (1976). As one court stated in rejecting a similar claim, "[w]e cannot hold that the legislature intended to impose upon the producer the absolute civil responsibility of an insurer in cases where every reasonable means designed to guarantee the safety of food for normal uses has been employed." Popour v. Holiday Foods Center, Inc., supra at 766 quoting Cheli v. Cudahay Brothers, Co., Mich.Supr., 267 Mich. 690, 255 N.W. 414, 415 (1934). Since there has been no showing that defendants' conduct fell short of the "every reasonable means" standard, and because plaintiffs were aware of the necessity of proper cooking, to define the pork sold in this case as "adulterated" under section 3304(6) would be to transfer defendants' status to that of insurers.

IV.

Finally, plaintiffs do not have a cause of action for damages under the Uniform Deceptive Trade Practices Act, 6 Del.C. §§ 2531-2536. Under the Act, a remedy for damages may be available to one who has a business or trade interest at stake, but not to a mere consumer. Pack & Process, Inc. v. Celotex Corp., Del.Super., 503 A.2d 646, 649 n. 1 (1985).

[710] Even when the record is viewed in a light most favorable to plaintiffs, this Court must conclude that there exists no material issues of fact sufficient to preclude summary judgment. Accordingly, defendants' motions for summary judgment are granted.

IT IS SO ORDERED.

[1] 16 Del.C. § 3304 provides in part:

"Food is deemed to be adulterated:

* * * * * *

"(6) If it consists in whole or in part of a filthly, decomposed or putrid animal or vegetable substance or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a deceased animal or one that has died otherwise than by slaughter."