Yong Cha Hong v. Marriott Corporation and Gold Kist, Inc.Civil No. S 86-3805UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND656 F. Supp. 445; 1987 U.S. Dist. LEXIS 2055; 3 U.C.C. Rep. Serv. 2d (Callaghan) 83; CCHProd. Liab. Rep. P11,489March 19, 1987, Decided DISPOSITION: Denied. CASE SUMMARY PROCEDURAL POSTURE: Defendants, restaurant and food supplier, moved for summary judgment in plaintiff's action for breach of warranty under Md. Code Ann., Comm. Law § 2-314(2), and negligence, based upon plaintiff's consumption of an inedible item in a chicken wing.OVERVIEW: Defendants, fast-food chicken restaurant and chicken supplier, moved for summary judgment in plaintiff's action for breach of warranty under Md. Code Ann., Comm. Law § 2-314(2) and negligence, based upon plaintiff's consumption of an item in a chicken wing which she thought to be a worm. Evidence showed the item more likely to be a trachea or aorta, and for purposes of defendants' motion, the court assumed it was not a worm. The court denied the motion as to the warranty claim, adopting the reasonable expectation test rather than the distinction between a foreign and natural object, and holding that the presence of an inedible item of the chicken's anatomy in a fast food fried chicken wing was not so reasonably to be expected as to render the chicken merchantable, as a matter of law. The court denied the motion on plaintiff's negligence count, finding genuine issues of material fact.OUTCOME: The court denied the motion for summary judgment, finding genuine issues of material fact. As to the warranty claim, the court held that the presence of the inedible item in a restaurant chickenwing was not so reasonably to be expected as to render the chicken merchantable, as a matter of law.CORE TERMS: chicken's, warranty, fried chicken, worm, summary judgment, bone, fish, wing, restaurant, reasonable expectation, trachea, aorta, breach of warranty, fast food, encountered, deposition, unexpected, inedible, anatomy, chowder, matter of law, question of fact, merchantability, offending, eating, oyster, fried, food, dish, bitLexisNexis® Headnotes Hide HeadnotesCommercial Law (UCC) > Sales (Article 2) > Contract Terms > General OverviewCommercial Law (UCC) > Sales (Article 2) > Warranties > General OverviewGovernments > Agriculture & Food > Processing, Storage & DistributionHN1The U.C.C. warranty of merchantability applies to sales of food in restaurants, including take-out sales. Md. Code Ann., Comm. Law § 2-314(1).Civil Procedure > Federal & State Interrelationships > Erie DoctrineHN2In the absence of any state decisional law, the federal district court must decide the issue byapplying the rule that the state court would likely adopt some time in the future.Commercial Law (UCC) > Sales (Article 2) > Contract Terms > General OverviewHN3Applying the reasonable expectation test, the court cannot conclude that the presence of a trachea or an aorta in a fast food fried chicken wing is so reasonably to be expected as to render it merchantable, as a matter of law, within the bounds of Md. Code Ann., Comm. Law § 2-314(2).Civil Procedure > Summary Judgment > Burdens of Production & Proof > General OverviewContracts Law > Sales of Goods > Damages & Remedies > General OverviewHN4It is true that a party having the burden of proof cannot carry that burden by "evidence which points in both directions," but it is also the undoubted common law of all American jurisdictions that a plaintiff can advance alternative legal theories of recovery.Torts > Malpractice & Professional Liability > Professional ServicesTorts > Negligence > Proof > Evidence > Inferences & PresumptionsTorts > Negligence > Proof > Evidence > Expert TestimonyHN5Neither expert testimony nor other direct evidence of any sort is needed (except in professional malpractice cases) to prove negligence; negligence can be inferred.COUNSEL: [**1] Gregory G. Injeian, of Glen Burnie, for Plaintiff.Edward S. Digges, Jr. and Andrew E. Vernick, Digges, Wharton & Levin, for Defendants. JUDGES: Smalkin, District Judge. OPINION BY: SMALKIN OPINION [*446] Smalkin, District Judge.The plaintiff, Yong Cha Hong, commenced this case in a Maryland court with a complaint alleging counts of negligence and breach of warranty against defendants, the proprietor of achain of fast food restaurants called Roy Rogers Family Restaurants (Marriott) and the supplier of raw frying chicken to the chain (Gold Kist). The case was removed to this Court on diversity grounds. It seems that the plaintiff was contentedly munching away one day on a piece of Roy Rogers take-out fried chicken 1 (a wing) when she bit into something in the chicken that she perceived to be a worm. She suffered, it is alleged, great physical and emotional upset from her encounter with this item, including permanent injuries, in consequence of which she prays damages in the amount of $500,000.00.- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 1 The Court takes judicial notice (because it is so well-known in this jurisdiction) that Roy Rogers specializes in fried chicken, to eat in or take out. Fed. R. Evid. 201. See Appendix hereto.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -The defendants moved for summary judgment [**2] on plaintiff's warranty count, and also, later, as to the entire complaint, on the ground that there is no genuine dispute of material fact and that, as a matter of law, there was no breach of warranty or negligence. If they are right, they are entitled to summary judgment. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). [*447] It appears that the item encountered by plaintiff in the chicken wing was probably not a worm or other parasite, see Strasburger & Siegel Certificate of Analysis (Partial S.J. Motion Ex. A), although plaintiff, in her deposition, steadfastly maintains that it was a worm, notwithstanding the expert analysis. If it was not in fact a worm, i.e., if the expert analysis is correct, it was either one of the chicken's major blood vessels (the aorta) or its trachea, bothof which (the Court can judicially notice) would appear worm-like (although not meaty like a worm, but hollow) to a person unschooled in chicken anatomy. The Court must presume plaintiff to be inexpert as to chickens, even though she admits to some acquaintance with fresh-slaughtered chickens. See Ross v. Communications
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