WHAT'S IN WENDY'S HAMBURGERS?

In honor of the Labor Day holiday, we thought we would examine a case that involves the world's favorite processed meat: the hamburger. In particular, we wanted to share the facts of an unusual case involving a gentleman named Robert Rudloff, who broke a tooth while eating a double cheeseburger at a local Wendy's restaurant. Although the cause of the harm was unknown--since Rudloff swallowed the piece of food that triggered the injury--there were a series of possible explanations including: a piece of bone, gristle or other "natural" food-related substance; a "foreign object" lodged in the meat patty or other portion of the burger (such as in the bun, cheese or condiment); or, some other condition, like the food being "partially frozen" at the time of consumption.
Given the billions of burgers that are served annually, you would think there would be a bunch of cases addressing a party's liability with respect to perilously prepared food-products, but Judge David M. Manz of the Buffalo City Court reports "there is surprisingly little case law on the subject...and there are no cases involving an injury caused by a hamburger." (Yes, we were surprised by that too.)
In the dispute heard by Judge Manz, Mr. Rudloff sought damages against Wendy's Restaurants of Rochester, Inc. (the restaurant's operator), and Moyer Packing Company, Inc. (the hamburger-patty manufacturer), based on theories of "negligence," "strict products liability," and "breach of implied warranties." After the conduct of depositions, Wendy's moved for summary judgment--a request that the case be ended based solely on written submissions to the court (without the need for a formal hearing or trial)--claiming no negligence on Wendy's part, that Mr. Rudloff could not prove that the injury was caused by something that was "unnatural" to the food product (like a "foreign object"), or that the meat patty was otherwise unfit for human consumption. Moyer's Packing also sought to end Rudloff's case, arguing that the consumer could not prove that the product was defective when it left that company's control.
In a lengthy decision, Judge Manz scrutinized Rudloff's legal claims and concluded that the case should be heard by a jury and proceed to trial. Simply put, after analyzing each of Rudloff's theories, the court found a number of questions that could not be resolved on the papers that had been presented.
As to the negligence component of the suit, since such liability arises when a party has failed to use "reasonable care in designing, making, inspecting and testing a product," Judge Manz was not convinced the defendants had used "ordinary care" to remove harmful substances from the food. (By way of example, there was an absence of any proof that measures had been implemented by Wendy's or its food supplier to ensure that their food products were "free of injury-causing substances.")
As to the "strict liability" component of Rudloff's lawsuit, the Court reviewed the governing elements and concluded that the product in question did not "perform" as intended--that is, the food could not be consumed without injury. As the Court observed:

In order to establish [strict] liability, a plaintiff is required to prove (1) that the product in question was not fit to be used as intended, (2) that the defect existed at the time that it left the defendants' hands, (3) that the plaintiff used the product as it was intended to be used, (4) that the plaintiff would not have been able to discover any defect in the product through the exercise of ordinary care, and (5) that the defect was a substantial factor in causing the accident. [citations omitted]
...A plaintiff is not required to prove the specific defect. In order to proceed in the absence of evidence identifying a specific product flaw, a plaintiff must 1) prove that the product did not perform as intended (in the context of a strict products liability action concerning food, the court assumes that a product "performs" as intended when it is consumed without injury to the consumer, absent any culpable conduct on his or her part or some other third party not involved in the chain of manufacture distribution or sale), and 2) exclude all other causes for the product's failure that are not attributable to defendants. [citations omitted].
The plaintiff has satisfied his burden. Since the product did not "perform" as intended and since there was a solid "chain of custody" for the hamburger patties from the time they were manufactured to the time they were served to the plaintiff, the only other cause that is plausible is that the plaintiff himself interjected the object into the hamburger or simply faked or contrived the whole incident. However, there were no allegations or proof that anything of that nature took place in this case.

1) the nature or size of the object, or both, 2) the type of food involved, 3) the way in which was the food was inspected, processed and prepared, 4) the type of establishment where the food was purchased, 5) whether the food needed further preparation before consumption, 6) what type of opportunity the consumer had to protect him or herself from the alleged defect (i.e., how the item is traditionally consumed), and 7) what steps, if any, must a reasonable consumer take to inspect his or her food prior to consumption.