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Koperwas v. Publix Supermarkets, Inc. - 534 So. 2d 872 (Fla. Dist. Ct. App. 1988)


An occasional piece of clam shell in a bowl of clam chowder is so well known to a consumer of such product that the courts of Florida can say the consumer can reasonably anticipate and guard against it. 


Plaintiff Tina Koperwas purchased a can of clam chowder from a grocery store operated by defendant Publix Supermarkets, Inc. ("Publix"). The chowder was manufactured by defendant Doxsee Food Corporation ("Doxsee"). While eating the chowder, plaintiff injured one of her molars when she bit down on a piece of clam shell. Plaintiff filed an action in Florida state court against Publix and Doxsee for breach of implied warranty. In the complaint she alleged that the chowder "was not fit for use as food, but was defective, unwholesome and unfit for human consumption" and "was in such a condition to be dangerous to life and health." At trial, the deposition of Doxsee's general manager was read into evidence, in which he described the "state of the art" methods Doxsee employed in manufacturing its clam chowder. At the close of plaintiff's case, defendants filed motions for directed verdicts. Plaintiff argued that a jury should decide whether Doxsee used reasonable care in the manufacture of the chowder. The trial judge disagreed and granted directed verdicts in favor of defendants. Koperwas appealed.


Did the trial court err in granting directed verdicts for defendants?




The appellate court affirmed the trial court's judgment. The court agreed with the lower court that a reasonable consumer might expect to find a piece of clamshell in clam chowder and could guard against injury from it. Because the evidence was such that a reasonable person would draw the conclusion of no breach of duty on the part of defendants, the case was properly dismissed.

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