Yong Cha Hong v Marriott Corporation and Gold Kist Inc Civil No S 86 3805 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND 656 F Supp 445 1987 U S Dist LEXIS 2055 3 U C C Rep Serv 2d Callaghan 83 CCH Prod Liab Rep P11 489 March 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 2314 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 chicken wing 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 bit LexisNexis Headnotes Hide Headnotes Commercial Law UCC Sales Article 2 Contract Terms General Overview Commercial Law UCC Sales Article 2 Warranties General Overview Governments Agriculture Food Processing Storage Distribution HN1 The 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 Doctrine HN2 In the absence of any state decisional law the federal district court must decide the issue by applying the rule that the state court would likely adopt some time in the future Commercial Law UCC Sales Article 2 Contract Terms General Overview HN3 Applying 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 2314 2 Civil Procedure Summary Judgment Burdens of Production Proof General Overview Contracts Law Sales of Goods Damages Remedies General Overview HN4 It 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 Services Torts Negligence Proof Evidence Inferences Presumptions Torts Negligence Proof Evidence Expert Testimony HN5 Neither 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 a chain 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 both of 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 Satellite Corp 759 F 2d 355 364 4th 3 Cir 1985 For the purposes of analyzing the plaintiff s warranty claim the Court will assume that the item was not a worm Precisely how the aorta or trachea wound up in this hapless chicken s wing is a fascinating but as yet unanswered and presently immaterial question Thus the warranty issue squarely framed is does Maryland law 2 provide a breach of warranty 3 remedy for personal
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