Summary of Webster v. Blue Ship Tea Room, Inc. (1964)
Facts: P was served a bowl of fish chowder at D’s “quaint" restaurant; after eating about 3 or 4 spoonfuls, she was aware that something was lodged in her throat; this led to two esophagocsopies, in the second of which a fish bone was found and removed; P sued D to recover damages for personal injuries sustained by reason of a breach of implied warranty
P/S: Defendant appealed a judgment for plaintiff in an action to recover damages for personal injuries sustained by reason of a breach of implied warranty related to food served in defendant’s restaurant.
Issue: Whether a fish bone lurking in a fish chowder, about the ingredients of which there is no other complaint, constitutes a breach of implied warranty under applicable provisions of the Uniform Commercial Code.
Rule: § 2-314. Implied Warranty: Merchantability; Usage of Trade:
Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in acontract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
Rationale: The court found no breach of implied warranty because a restaurant customer such as plaintiff, eating fish chowder, should have anticipated having to remove some fish bones from her bowl. The mere presence of a fish bone in fish chowder containing chunks of fish and potato eaten by a New Englander at a restaurant after stirring the chowder did not constitute a breach of the implied warranty of merchantability of the chowder by the proprietor of the restaurant under § 2-314 of the Uniform Commercial Code, and did not render the proprietor liable on that ground to the customer for injuries received when the fish bone lodged in her throat.