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Hochberg v. O'Donnell's Rest., Inc. - 272 A.2d 846 (D.C. 1971)


There is a split in the authorities throughout the country as to what test should be applied where an injury is suffered from an object in food or drink consumed in a restaurant. Some courts hold there is no breach of implied warranty on the part of a restaurant if the object in the food causing the injury was "natural" to the food served. On the other hand, if the object was "foreign" to the food there may be a recovery. This has come to be known as the "foreign-natural" test. On the other side are authorities which hold that under modern conditions the test is what should reasonably be expected by the consumer to be in the food served to him. This is known as the "reasonable expectation" test. 


The customer ordered a martini. He took the olive out of the martini, noticed that it had a hole in it, bit into it, and broke his tooth on its pit. The customer filed a cause of action against O'Donnell's Restaurant alleging negligence and breach of implied warranty. At the close of the customer's case, the trial court granted the restaurant's motion for a directed verdict. The customer sought review.


Did the trial court err in using the the foreign-natural test in reviewing the present action?




The court held that the reasonable expectation test should be applied when an injury was suffered from an object in food consumed in a restaurant, rather than the foreign-natural test used by the trial court. The court held that the crucial consideration in reviewing the present action was that the customer saw the hole in the olive, and therefore assumed that it had been pitted. The court held that the question of what the customer was reasonably justified in expecting was properly a jury question. The court held that viewing the customer's evidence in its strongest light and giving it the benefit of all reasonable inferences, the question should have been submitted to the jury.

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