As a hospitality manager involved with the service of food, you have a legal obligation to only sell food that is wholesome, and to deliver that food in a manner that is safe. This responsibility is mandated by the Uniform Commercial Code (UCC), as well as other state and local laws. Figure 1 details one section of the UCC that relates to selling safe food. When a foodservice operation sells food, there is an implied warranty that the food is merchantable. Simply put, a Foodservice Manager is required to operate his or her facility in a manner that protects guests from the possibility of foodborne illness, or any other injury that may be caused by consuming unwholesome food or beverages. Unfortunately, sometimes, food is served that contains something that the guest normally would not expect to find in the dish (for example, a small stone in a serving of refried beans). The question that must be answered in these cases is whether or not the food or beverage served was “fit” for consumption.

The courts usually apply one of two different tests to determine whether a foodservice establishment is liable to a guest for any damages suffered from eating the food. (In the case of the stone found in the refried beans, the damage may consist of a broken tooth from biting down on the small stone.) One test seeks to determine whether the object is foreign to the dish or a natural component of it. If the object is foreign, then the implied warranty of merchantability (fitness) under the UCC is breached, and the Foodservice Operator would be held liable. If it is a natural component, the warranty is not breached. For example, the stone in the refried beans, though commonly found in large bags of raw beans, would be considered foreign, and thus the Foodservice Operator would probably be responsible. However, if the guest had broken a tooth on a piece of clam shell while enjoying a steaming bowl of New England clam chowder, the guest would probably not recover any damages under this test. The clamshell is a natural component of clams, therefore, the court reasons, is also a natural component of clam chowder.

The foreign/natural test is slowly being replaced by the “reasonable expectation” test. This test seeks to determine whether an item could be reasonably expected by a guest to be found in the food. The clamshell situation is a perfect example of why the law (and assessing liability) can be difficult at times. Clamshells are natural parts of clams, but are they really natural components of clam chowder? Put another way, would you, as a guest, reasonably expect to find pieces of clamshell in a bowl of clam chowder that was served to you? If a judge or jury decided that it was not reasonable to expect to find a clamshell in the chowder, then the Foodservice Operator would be held liable. A tricky situation arises if someone orders a fish filet sandwich. As the word filet means boneless, a guest would not expect to find bones in the sandwich. Accordingly, if a bone were present, and the guest choked on that bone, the consequences could be substantial for the Foodservice Operator.

To view/download a sample checklist to help you meet your obligations when serving food log on to www.HospitalityLawyer.com, click on Forms/Checklists/Procedures in the left-hand toolbar, and then click on the checklist titled “Food Service Checklist.”

Figure 1
Uniform Commercial Code: Implied Warranty. § 2-314.: Merchantability; Usage of Trade.

1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract 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. [03/2002]

Stephen Barth is an attorney and associate professor of law and leadership at the Conrad N. Hilton College of Hotel & Restaurant Management at the University of Houston. For more information visit www.HospitalityLawyer.com. Stephen can be contacted at (713) 963-8800 or via email at [email protected].