Hochberg v. O'Donnell's Restaurant, Inc

In Hochberg v. O'Donnell's Restaurant, Inc. (D.C. App. 1971) 272 A.2d 846, the plaintiff sued a restaurant for negligence and breach of implied warranty after he chewed an olive in a martini and injured his tooth. (Id. at p. 847.) The trial court "decided as a matter of law that a pit in an olive could not render the olive unwholesome and unfit for human consumption, and therefore directed the verdict." (Id. at p. 848, fn. 7.) On appeal, the Hochberg court applied the reasonable expectation test, explaining, "In our view it is unrealistic to deny recovery as a matter of law if, for example, a person is injured from a chicken bone while eating a sliced chicken sandwich in a restaurant, simply because the bone is natural to chicken. The exposure to injury is not much different than if a sliver of glass were there. '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.' Because a substance is natural to a product in one stage of preparation does not mean necessarily that it will be reasonably anticipated by the consumer in the final product served. It is a different matter if one is injured by a bone while eating a chicken leg or a steak or a whole baked fish. There, it may well be held as a matter of law that the consumer should reasonably expect to find a bone." (Id. at p. 849.) The Hochberg court then concluded, "it appears the crucial consideration for the purpose of this review is that appellant saw the hole in one end of an olive and therefore assumed it had been pitted, chewed the olive and injured his tooth on the pit. He concedes that if he had not seen the hole in the olive his case would be 'extremely tenuous.' This narrows the problem to whether on these facts he was reasonably justified in expecting there was no pit in the olive and could chew without care. 'What is to be reasonably expected by the consumer is a jury question in most cases. Appellant admits that a fact finder might conclude that he should have exercised greater care in chewing the olive. But he argues he was entitled to have the jury resolve the issue. We think the question of what appellant was reasonably justified in expecting was properly a jury question here." (Hochberg, supra, 272 A.2d at p. 849.)