KILPATRICK v. HOLIDAY INNS INC (1991)

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.   We conclude that the court erred in granting summary adjudication.

Facts and Procedures

In June 1988, petitioner WilliamKilpatrick (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.

Vibrio cholerae is an acquatic 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.

Contentions of the Parties

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.

Discussion

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.   One, 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.   The other, 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.

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.)

Mix is said to have established a two-prong test.   For a seller to avoid strict liability for injurious food, both prongs must be met.   The first prong is satisfied if the seller can show that the harmful substance was natural to the food served.   The second requires a finding that presence of the substance is common knowledge and within the reasonable expectation of the consumer.  (See Evart v. Suli (1989) 211 Cal.App.3d 605, 610–611, and fns. 3 & 4, 259 Cal.Rptr. 535, where the court discusses Mix's mixed reception by courts in other states.)

 Plaintiff's complaint presents “strict liability” and “breach of warranty” as two separate causes of action.   The superior court applied different tests to the two causes of action.   The court rejected strict liability because the oysters were eaten in their natural state and rejected implied warranty because the food was reasonably fit for human consumption.   In fact, the history of strict liability shows that “strict liability” and “breach of implied warranty” are two ways of characterizing the same theory of recovery.  (See Scheller v. Wilson Certified Foods, Inc. (App.1976) 114 Ariz. 159, 559 P.2d 1074, 1076;  Bronson v. Club Comanche, Inc. (D.V.I.1968) 286 F.Supp. 21, 23;  Rest.2d Torts, supra, § 402A, com. m, pp. 355–356.)   The test is the same for both:  is the food reasonably fit for human consumption.  Mix states a two-prong test for deciding if the food was reasonably fit.   Both causes of action formulated by plaintiff stand or fall under the same test.

After Mix

In the wake of Mix, courts in other states debated whether to follow the “foreign-natural” approach, or apply the “reasonable expectation” test.   Some applied the foreign-natural test.  (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 (1959) 221 Md. 105, 156 A.2d 442.)

Unlike Evart, these out-of-state decisions have not read Mix as establishing a two-prong test.   However, one of the better reasoned out-of-state decisions suggested that the “foreign-natural” distinction might be important in determining what the consumer might reasonably expect:  “The reasoning applied in [the foreign-natural] test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served.   It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin.   Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption.   A nutshell natural to nut meat can cause as much harm as a foreign substance, such as a pebble, piece of wire or glass.   All are indigestible and likely to cause the injury.   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.”  (Zabner v. Howard Johnson's, Incorporated, supra, 201 So.2d at p. 826.)

Application of Mix Here

 We agree with Evart that Mix is not exclusively a “foreign-natural” case,² and we agree with Zabner that naturalness is a factor to consider in determining what the consumer might expect.   For a food to be reasonably fit for consumption, even a natural constituent must be within the reasonable expectation of the consumer.   But in general a consumer is more likely to expect a natural substance than a foreign object.

Mix quickly determined under its first prong that bones are “natural” to chickens.   Our first-prong question is more difficult.   Is an oyster what it eats?   Or is the “nature” of the oyster its condition at birth, whatever that may be?   We may state the metaphysical question, but we will not attempt to answer it.   We assume for purposes of further analysis that the trial court was correct in its determination that the vibrio cholerae bacteria are natural parts of oysters.   We consider the second prong of Mix more important.

Is the presence of vibrio cholerae bacteria in oysters common knowledge and within the reasonable expectation of the consumer?   Posing this question raises sub-issues.   The first is whether we should focus upon the consumer's knowledge of vibrio cholerae bacteria or upon the consumer's knowledge of bacteria in general in raw oysters.   The second is whether we should consider also plaintiff's personal knowledge of bacteria in raw oysters.   A third sub-issue is whether it matters that the consumer would have no means for avoiding the injurious substance unless he chose not to eat the oysters;  is the consumer's expectation important when the consumer cannot guard against the substance by probing the food while eating it?

 The first two sub-issues are easily decided.   Our focus must be upon the consumer's knowledge of harmful bacteria in general, not the consumer's knowledge of a particular kind of bacterium.   A consumer cannot be expected to possess scientific knowledge of the nature of the harmful bacteria or chemicals in a toxic substance.   But we stress that knowledge of the presence of any bacteria in raw foods does not suffice.   Many bacteria are harmless, and some are harmful only in large doses.   Our focus is upon the consumer's knowledge of harmful concentrations of bacteria.   And we consider only what is common knowledge and within the reasonable expectation of consumers generally, not what plaintiff may have known.   Plaintiff's personal knowledge is important only in deciding whether he has assumed a known risk, a defense to strict liability.  (Bronson v. Club Comanche, Inc., supra, 286 F.Supp. at p. 23;  Rest.2d Torts, supra, § 402A, com. n, p. 356.)   Defendants presented no evidence that plaintiff knew the oysters might contain harmful concentrations of bacteria.

 The third sub-issue points to a significant distinction between the Mix line of cases and this case.  Mix said that a consumer who eats meat dishes should “anticipate and be on his guard against the presence of such bones.”  (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 682, 59 P.2d 144.)   The restaurant keeper in Mix would not be strictly liable because the consumer could guard against the bones.   But a consumer of raw oysters has no defense against harmful levels of injurious bacteria.   If the consumer expects harmful levels of bacteria, he or she must either cook the meat or not eat it.

In decisions involving injury from pork infested with trichina larvae, courts have said that it is common knowledge that pork must be properly cooked.   (Huebner v. Hunter Packing Co. (1978) 59 Ill.App.3d 563, 16 Ill.Dec. 766, 769, 375 N.E.2d 873, 876;  Scheller v. Wilson Certified Foods, Inc., supra, 559 P.2d at p. 1077;  Hollinger v. Shoppers Paradise of New Jersey, Inc. (1976) 142 N.J.Super. 356, 361 A.2d 578.)   By contrast, we take judicial notice of the fact that oysters are routinely served and eaten raw.   When oysters are offered raw by a hotel or restaurant, reasonable consumers, even those aware that some oysters may contain harmful concentrations of bacteria, would assume that those served to them were reasonably safe for persons with normal immune systems.   If not, the consumers would expect a warning to that effect and a description of the known risks of harmful levels of bacteria.   Oysters that did not meet those expectations would not be reasonably fit for human consumption.

 In granting summary adjudication, the court impliedly concluded that the oysters served to plaintiff were reasonably safe.   Reasonable fitness is frequently a question for the trier of fact (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 681, 59 P.2d 144), but “certain cases present facts from which the court itself may say as a matter of law” that the food is reasonably fit (id., at p. 682, 59 P.2d 144).   We conclude that the court erred in finding the oysters fit as a matter of law.   Fitness of these oysters is a triable issue of fact.

Plaintiff's injury and the medical evidence tying it to the oysters, standing alone, would be persuasive evidence that the oysters were not reasonably fit.   Defendants countered with evidence that plaintiff is an alcoholic and with expert declarations.   Dr. Vincent G. Pons, M.D., stated that “[t]he human immune system can, in the vast majority of cases, successfully protect the body from infection and illness from ingestion of Non–01 Vibrio Cholerae, without any ill effects ․” and that “[a] very small minority of normal, immunocompetent persons will be adversely affected by ingestion of Non–01 Vibrio Cholerae and non-Cholerae Vibrios, depending on the amount of bacteria ingested and other host factors.”   He did not estimate what percentage would be and what percentage would not be adversely affected, and he said nothing about the amount of bacteria required for ill effects or the amount ingested by plaintiff.

Defendants' other expert, Lawrence Drew, stated that, in his 20 years as director of clinical microbiology and infectious disease at Mt. Zion Hospital, he had encountered only two patients with cholerae infections, and that severe infection with these bacteria “is seen almost exclusively in patients with underlying disease of the liver or immune system.   This fact makes severe infections such as that demonstrated by the plaintiff even more remote.   In my experience, the plaintiff's reaction to the bacteria is extremely rare.”

The court's summary adjudication ruling is correct only if defendants' evidence conclusively established that oysters with the levels of cholerae bacteria ingested by plaintiff are reasonably safe for human consumption by people with normal immune systems and that plaintiff's reaction was highly unusual.   Defendants' evidence fell short.   Dr. Pons admitted that a very small minority of normal persons would be adversely affected by cholerae bacteria, “depending on the amount.”   Dr. Drew also admitted that severe cholerae infection is seen “almost” exclusively in patients with liver or immune system diseases.   Defendants presented no evidence that plaintiff's liver or immune system was impaired and none about the level of bacteria in the oysters he ate.

While this evidence might persuade a trier of fact that the oysters were reasonably safe, it is by no means conclusive.   Under the evidence presented, the level of cholerae bacteria in the oysters eaten by plaintiff may well have been too high for even a person of normal tolerance, which plaintiff may be.   The trier of fact must decide.

Failure to Warn

 If plaintiff's reaction to the bacteria was highly unusual, and the oysters were reasonably fit, defendants may well avoid liability under the reasonable expectation prong of Mix.   But even if plaintiff is shown to have been stricken because of his alcoholism, he may have a basis for recovering in strict liability for failure to warn.

Comment j to section 402A of the Restatement Second of Torts, supra, at page 353, frequently applied by the California courts (see Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1204–1206, 251 Cal.Rptr. 805, and cases cited therein), places a duty to warn on the seller of a product known to be dangerous to a substantial number of the population:  “Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge․”

Application of comment j presents several issues not acknowledged by the challenged ruling.   If plaintiff's alcoholism made him more vulnerable to the vibrio cholerae bacteria, how many other alcoholics are vulnerable?   Is the number high enough for sellers of raw oysters to warn of the risk to alcoholics?   Do alcoholics commonly recognize the increased risks of bacterial infection from foods like raw oysters?   Were sellers aware of the increased risks to alcoholics or others with impaired immune systems?

We take judicial notice that the immune systems of a substantial number of San Francisco residents have been compromised by alcoholism, cancer, HIV infections, and other diseases.   If food suppliers are not aware of this “at-risk” population, they should be.   Consumers in good health have the right to assume oysters served without warning are safe for them.   Those with impaired immunities have even greater need for safe foods and for warnings about hidden dangers known by the sellers.  (See generally Brown v. Superior Court (1988) 44 Cal.3d 1049, 1065–1066, 245 Cal.Rptr. 412, 751 P.2d 470;  Vermeulen v. Superior Court, supra, 204 Cal.App.3d at pp. 1202–1206, 251 Cal.Rptr. 805.)

Summary

We have concluded that the court erred in summarily adjudicating strict liability and breach of warranty causes of action against plaintiff.   Even assuming the vibrio cholerae bacteria are considered natural to oysters, the oysters may not have been reasonably fit.   The consumer of raw oysters has a right to expect safe oysters.   The court erred in ruling as a matter of law that the oysters were reasonably safe.   Even if these oysters were safe for the average person, a warning to those with impaired immune systems may have been required.   Issues of fact remain.

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.

FOOTNOTES

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

2.   The meaning of Mix may be clarified by the California Supreme Court in its review of Mexicali Rose v. Superior Court (1989) 214 Cal.App.3d 238, 262 Cal.Rptr. 750, review granted ––– Cal.3d ––––, 264 Cal.Rptr. 683, 782 P.2d 1139 (1989)—a case involving chicken bones in an enchilada.

CHIN, Associate Justice.

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