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Court of Appeal, First District, Division 3, California.

William KILPATRICK, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent. HOLIDAY INNS, INC., et al., Real Parties in Interest.

No. A051001.

Decided: August 28, 1992

Genese Dopson Smith,Sarrail, Lynch & Hall, San Francisco, for petitioner. No appearance for respondent. Gail Y. Norton, Geordie L. Duckler, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, G. Kelley Reid, Peter E. Theophilos, La Follette, Johnson, De Haas & Fesler, William E. Joost, Jr., Mayo, Rogers & Joost, Jerald W.E. Jamison, Keith Reyen, O'Connor, Cohn, Dillon & Barr, San Francisco, for real parties in interest.

The question presented here is whether sellers of oysters eaten raw may be held strictly liable for injuries caused by bacteria found in the tissue of the oysters.   The superior court has ruled that strict liability and implied warranty causes of action are not available to the plaintiff because he ate the oysters in their natural state, and they were reasonably fit for human consumption.   Having reconsidered this case in light of Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292, we conclude again that the court erred in granting summary adjudication.


In June 1988, petitioner William Kilpatrick (hereafter plaintiff) ate raw oysters ordered from room service at the Holiday Inn at Fisherman's Wharf in San Francisco.   Within a few hours, he became very ill with nausea, vomiting, and diarrhea.   He had pink splotches on his legs that progressed into lesions.   Plaintiff was hospitalized and underwent skin grafting and other treatment.   According to his doctor, his symptoms resulted from consumption of raw oysters tainted with Vibrio cholerae non–01 (Vibrio cholerae hereafter).

Vibrio cholerae is an aquatic bacterium present in estuarine environments of the United States, Canada, and other parts of the world.   Oysters, because they feed by filtering water, accumulate Vibrio cholerae bacteria in their tissues.   The bacteria multiply even under refrigeration, but growth is slowed by proper cold storage.   The bacteria do not affect the oysters' taste, smell, or appearance.   When the oysters are eaten raw, the bacteria are transmitted to the eater.   The potential for causing disease increases with the quantity of bacteria present, and the danger is greater for persons with impaired immunity.

Plaintiff filed an action for damages against Holiday Inns, Inc., and the various suppliers in the stream of distribution of the oysters (hereafter defendants).1  He stated causes of action for negligence, negligence per se, strict liability, and breach of warranty.   Defendants filed a joint motion for summary adjudication, seeking to bar plaintiff from proceeding on the strict liability and breach of warranty causes of action.   After hearing, the court granted defendants' motion.   This petition followed.   We granted the relief sought by plaintiff, but the California Supreme Court granted defendants' petition for review and held the matter pending its decision in Mexicali Rose.   It has now retransferred the matter to us for reconsideration in light of Mexicali Rose.


Plaintiff contends that the court misapplied the “foreign-natural” test to conclude that the bacteria were natural to raw oysters.   He argues alternatively that if the court correctly applied the foreign-natural test, it erred in failing to recognize two issues of fact:  (1) whether it is common knowledge that oysters contain Vibrio cholerae bacteria, and (2) whether plaintiff should have reasonably anticipated the bacteria's presence and taken measures to guard against injury.

Defendants assert that the court correctly ruled that Vibrio cholerae bacteria were a natural part of the oysters' flesh and cannot be considered a defect.   They say that the oysters were reasonably fit for human consumption because their constituents were both natural and reasonably anticipated.   Not only is it common knowledge that food and water are not absolutely pure and contain bacteria, but plaintiff himself admitted that he knew raw oysters naturally contained some bacteria.   Defendants suggest that plaintiff was injured only because his liver and immune system had already been compromised by his alcoholism.   Defendants also claim that strict “products” liability law does not apply to raw foods which are not assembled or manufactured in any way.


History of Strict Liability

 This last claim fails to appreciate the early history of strict liability law and its fairly recent extension to “manufactured” products.   From the birth of strict products liability in 1913 until its expansion in the 1960's, the doctrine was applied primarily to defective food and drink.   (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 97, p. 690.)   Strict liability without privity of contract was justified in these early cases by saying the product carried an “implied warranty” to the ultimate consumer that it was reasonably fit for use.   Then Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, and adoption of section 402A of the Second Restatement of Torts by the American Law Institute in 1964, severed “strict liability” from its roots in warranty law and opened it up to products other than food and drink.  (Prosser & Keeton, supra, at §§ 97, 98, pp. 690–694;  Rest.2d Torts, § 402A, com. b, pp. 348–349.)   Strict liability still applies to foods, even those which are neither cooked, canned, packaged, nor otherwise treated.  (Rest.2d Torts, supra, § 402A, com. e, p. 350.)

Mix v. Ingersoll Candy Co.

Two California Supreme Court decisions are part of the vanguard of strict liability law for food.   A third, Mexicali Rose v. Superior Court, supra, 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292, informs us of the current state of California law.   The first two were decided the same day.  Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 688, 59 P.2d 142, said the jury should have been instructed on the implied warranty theory of strict liability.   Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 681–683, 59 P.2d 144, more widely cited than Goetten, held that the particular facts pleaded could not support a judgment based upon an implied warranty or for negligence.

In Goetten, the plaintiff swallowed some glass while eating chow mein.   The Supreme Court held that the lunch counter impliedly warranted that the food it served was wholesome and free from dangerous foreign substances.  (Goetten v. Owl Drug Co., supra, 6 Cal.2d at p. 687, 59 P.2d 142.)  “ ‘․ As between the patron, who has no means of determining whether the food served is safe for human consumption, and the seller, who has the opportunity of determining its fitness, the burden properly rests with the seller, who could have so cared for the food as to have made the injury to the customer impossible․’ ”  (Ibid.)

Mix v. Ingersoll Candy Co., supra, 6 Cal.2d 674, 59 P.2d 144, is widely credited with establishing the “foreign-natural” test for strict liability for foods.   In Mix, the plaintiff was injured by swallowing a fragment of a chicken bone served in a chicken pie.   He sought recovery on theories of negligence and breach of an implied warranty.   In rejecting the implied warranty theory, the Mix court considered whether a restaurant keeper was obliged to present perfect food, and concluded that “reasonably fit” food did not mean perfect food:  “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.”  (Id., at p. 681, 59 P.2d 144.)

The Mix court then explained that it had examined a great many cases and found none where liability was based upon the presence in food of bones which were “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.”  (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 681, 59 P.2d 144.)   The plaintiff in Mix suggested that to rule against him, the Supreme Court would have to take judicial notice of the alleged fact that chicken pies usually contain chicken bones.   The court disagreed:  “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․  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.”  (Id., at p. 682, 59 P.2d 144.)

The Mix court rejected the negligence claim, saying that “[i]f 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.”   (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 683, 59 P.2d 144.)

Mexicali Rose v. Superior Court

In the wake of Mix, courts in other states debated whether to follow the “foreign-natural” approach.   Some applied it.  (See, e.g., Title v. Pontchartrain Hotel (La.App.1984) 449 So.2d 677;  Coffer v. Standard Brands, Inc. (1976) 30 N.C.App. 134, 226 S.E.2d 534;  Allen v. Grafton (1960) 170 Ohio St. 249, 164 N.E.2d 167.)   Others rejected it in favor of the “reasonable expectation” test.  (See, e.g., Jim Dandy Fast Foods, Inc. v. Carpenter (Tex.App.1976) 535 S.W.2d 786;  Matthews v. Campbell Soup Company (S.D.Tex.1974) 380 F.Supp. 1061;  Zabner v. Howard Johnson's, Incorporated (Fla.App.1967) 201 So.2d 824;  Bryer v. Rath Packing Company (App.1959) 221 Md. 105, 156 A.2d 442.)

In Mexicali Rose v. Superior Court, supra, 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292, the California Supreme Court considered the continuing vitality of Mix.   Plaintiff there sustained injury after being served a chicken enchilada containing a one-inch bone.   After an exhaustive review of post-Mix decisions by courts in various jurisdictions, Mexicali Rose concluded that the “foreign-natural” test should be applied only to claims arising under strict liability and not to negligence causes of action.   The court explained:  “If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective.   A plaintiff in such a case has no cause of action in strict liability or implied warranty.   If, however, the presence of the natural substance is due to a restaurateur's failure to exercise due care in food preparation, the injured patron may sue under a negligence theory.  [¶ ] If the injury-causing substance is foreign to the food served, then the injured patron may also state a cause of action in implied warranty and strict liability, and the trier of fact will determine whether the substance (i) could be reasonably expected by the average consumer and (ii) rendered the food unfit or defective.”  (Id., at p. 633, 4 Cal.Rptr.2d 145, 822 P.2d 1292, fn. omitted.)

In an exchange with the three dissenting justices, Mexicali Rose attempted to further define “natural.”   The first dissent (concurred in by two justices) asked questions about the meaning of foreign and natural:  “what exactly do we mean when we say an object is ‘foreign to’ or ‘natural to’ a dish?  ‘Natural to’ surely cannot include all natural material.   Salmonella is natural and feces are natural, but their presence in food surely makes the food unfit for consumption.   What about a hamburger made out of chopped rat flesh?”   (Mexicali Rose v. Superior Court, supra, 1 Cal.4th at pp. 634–635, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (dis. opn. of Mosk, J.).)   The second dissent suggested that a cow's eye in a hamburger would be natural to the product.   (Id., at p. 645, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (dis. opn. of Arabian, J.).)   The Mexicali Rose majority answered these dissents:  “Unfortunately, both dissents misrepresent the scope and application of our holding.   The term ‘natural’ refers to bones and other substances natural to the product served, and does not encompass substances such as mold, botulinus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served.”  (Id., at p. 630, fn. 5, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (maj. opn.).)

One dissenting justice found this explanation insufficient, answering it with a footnote:  “The majority respond by insisting that a cow's eye is not ‘natural to the preparation’ of a hamburger.  (Maj. opn., ante, at p. 630, fn. 5, [4 Cal.Rptr.2d 145, 822 P.2d 1292.] )   Yet the majority fail to explain anywhere in their opinion the meaning of that phrase.   Is a chicken beak ‘natural to the preparation’ of a chicken enchilada because the preparation process begins with a whole chicken?   It is the absence of any principled articulation of what, if anything, distinguishes these two examples that demonstrates the irrationality of the foreign-natural doctrine and illustrates the difficulty courts will face in attempting to apply this artificial distinction.”  (Mexicali Rose v. Superior Court, supra, 1 Cal.4th at p. 645, fn. 1, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (dis. opn. of Arabian, J.).)

Vibrio cholerae

 Our task is to determine whether Vibrio cholerae is natural to the preparation of raw oysters, within the meaning of Mexicali Rose.   We know from Mexicali Rose that mold, botulinus bacteria, rat flesh, and cow eyes are not natural to hamburgers and similar products.   But is the Vibrio cholerae bacterium materially different from botulinus bacteria, and does it matter that the Vibrio cholerae could have been introduced to the oysters before harvesting?

Defendants suggest that footnote 5 of the majority opinion is no model of clarity.   But they assert that the four mentioned foreign substances share a common characteristic—they are never present in ground beef without human intervention, either active or passive;  that is, they “never occur in beef ‘on the hoof.’ ”   Defendants say that when read in the context of the entire opinion, the footnote distinguishes substances which “are present exclusively as a function of human intervention, from those which may also be present in the wild.”

Defendants cite no authority for their assertion that botulinus bacteria do not occur in beef “ ‘on the hoof,’ ” an assertion not supported by medical reference texts.  (See Stedman's Medical Dict. (4th ed. 1976) pp. 190, 289;  Sloane–Dorland Annot. Medical–Legal Dict. (1987) pp. 94, 149.)   Nor do they explain the concept of “passive” human intervention.

Botulinus bacteria, along with Salmonella and Vibrio cholerae, are present in the wild in the tissues of various land or aquatic animals and may or may not be present in large quantities in food served to humans, depending on steps taken to kill the bacteria and upon methods of storage and preparation.  (See United States v. Nova Scotia Food Products Corp. (2d Cir.1977) 568 F.2d 240, 250–251;  United States v. 1,200 Cans, Pasteurized Whole Eggs, Etc. (N.D.Ga.1972) 339 F.Supp. 131, 136;  United States v. City of Asbury Park (D.N.J.1972) 340 F.Supp. 555, 566;  Chip Steak Co. v. Hardin (N.D.Cal.1971) 332 F.Supp. 1084, 1090–1091;  Stedman's Medical Dict., supra, at pp. 190, 289, 1249, 1551;  Sloane–Dorland Annot. Medical–Legal Dict., supra, at pp. 94, 139, 149, 624–625, 775.)   Although there are differences between Vibrio cholerae and botulinus bacteria, we see none that would make one natural and the other foreign, as those terms were used by Mexicali Rose.

We conclude that Vibrio cholerae is a foreign substance to raw oysters.   Thus, the theory of strict liability is available to plaintiff.   Pursuant to Mexicali Rose, the trier of fact must determine “whether the substance (i) could be reasonably expected by the average consumer and (ii) rendered the food unfit or defective.”  (Mexicali Rose v. Superior Court, supra, 1 Cal.4th at p. 633, 4 Cal.Rptr.2d 145, 822 P.2d 1292, fn. omitted.)

Acting without the benefit of Mexicali Rose, the superior court concluded that oysters eaten in their natural state could not support a strict liability cause of action and that they were reasonably fit for human consumption.   The court summarily adjudicated against plaintiff his causes of action for strict liability and breach of warranty.   In light of Mexicali Rose, the court erred.   We do not discuss issues concerning the quality of plaintiff's evidence that the oysters were not reasonably fit or the effect of evidence that plaintiff's immune system was compromised, except to point out that defendants, who had the burden on the motion, did not conclusively establish either that dangerous quantities of Vibrio cholerae could be reasonably expected by the average consumer or that the oysters eaten by plaintiff were fit for human consumption.

Let a peremptory writ of mandate issue directing the Superior Court of the City and County of San Francisco to vacate its order adjudicating issues against plaintiff.


1.   The other defendants are United Shellfish, Inc., Fisherman's Wharf Seafoods, Inc., and Pearson's Seafood.

CHIN, Associate Justice.

WHITE, P.J., and MERRILL, J., concur.

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