Hosp. Law 1st Edition Lecture 28 Outline of Last Lecture I. Business Responsibility for third party crimea. Connie Francis vs Howard Johnsonb. M.C. B.C. v Yeargin + Marriotc. Aurora Coloradod. St. Louis Jack in the Boxe. Virginia Tech tragedy Outline of Current Lecture II. Alternative theories to negligencea. Breach of warrantyb. Strict liability c. Tort theoriesd. Contract theoriesi. Common fact situations in food lawsuitsCurrent Lecture(From last lecture) Sovereign immunity- a defense to a negligence case that can be asserted by the government in some casesAlternative theories to negligence- Used if you can’t prove negligence or there are damage problems- Breach of warrantyo Types of warranty:These notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute. Expressed- stating something right up front; ex: car salesman says “we guarantee this car to be free of defects for 90 days” Implied warranty of merchantability- guarantee minimum level of quality that comes along with a product or service; seller can absolve themselves of this if they include the words “as is” or “with all faults”- Strict liability- defendant is liable even though they were careful and not negligento Three situations where strict liability can apply under tort law: Ultra hazardous activity- an inherently dangerous activity, i.e., demolition of buildings—even if they are careful and someone gets hit with a brick onthe site, they will be liable for that Wild animals- keeping a wild animal, you’re liable for anything that happens because of it (as opposed to a domestic animal) - Domestic animal- dog, cat, horse, sheep, cattle- Wild animals- anything that is not a domestic animal (lion, tiger, etc) - Zoos- even though the zoo is “careful” about having these animals,they’re still liable for anything that could happen because they are wild animals- Dog bites- to prove someone liable for a dog bite you have to prove negligence by proving that the owner knew the dog had dangerous tendencies (i.e., he has bitten someone before) Products liability- selling dangerous products—even if the manufacturer was careful in making them, they can still be liable for any damages related to the productFood/beverage cases involving bodily injury--What theories of liability?Theory of liability impacts who can be sued, the damages available, statutes of limitation, etc.TORT theories - Negligence- failure to exercise care in the preparation or storage of food- Negligence per se- violating a food safety code or health code- Strict liability- products liability—ex: McDonalds hot coffee case- Emotional distress- anything that shocks someone badlyCONTRACT theoriesBreach of the Warranty of merchantability- says that any food sold is fit to be eaten by humans-- may have a Privity of Contract defense- says you can only sue the person that you directly dealt with, so if B ordered the food from A, C cannot sue A, but B can (see example below)Ex A sells tainted food to B. C consumes the food. Can C sue A? Common fact situations in food/beverage lawsuits- Type 1----Illness after consumption----Difficulty of proofo Very hard to prove if only one person is sick—you would have to have a blood or stool sample to prove that the food was the cause of the illness if you want to press charges against the businesso US Center for Disease control- tracks food Bourne illness cases “Outbreak”- two or more people who become ill after consuming a certainfood - Type 2--- Foreign/unexpected substance in the food –“foreign” meaning not natural to, unrelated to the food; ex: Wendy’s customer found a severed human finger in her chili—turns out that she put it in there in order to sue Wendy’s and get money o Theory of liability- Negligence in most of these caseso Breach of Warranty- two tests that apply:  On a type 2 case it doesn’t matter what test the jurisdiction follows Foreign/Natural test- if the item is foreign to the food then the plaintiff hasa submissable case "Reasonable expectations of consumer" test- what a reasonable consumer would expect when ordering a product of this type- Type 3- Foreign/unexpected substance-----natural/related to the food o Ex: “ Chicken bone” in anything that has chicken o Negligence less likely ---more likely that the plaintiff would try to prove Breach of Warranty in these caseso Depends on the test the jurisdiction follows:o Foreign/natural test- if the substance is natural to the food, the plaintiff loses; (helps the defendant)o Reasonable expectations of consumer- creates jury question if its expected in the food or not… plaintiff oriented test (helps plaintiff)- Type 4- Misrepresentation/Mistake on order- Food served doesn't match order/important customer request or customer doesn’t receive what was advertisedo Allergies- you’re liable to make sure you’re not harming someone if they tell you about their allergyo Religion- can’t consume pork—also liable to make sure there is no pork in the meal if they ask you to - Type 5- Emotional distress caseso Chambley case- Applebee’s- wife ordered salad and finds a condom on the plate—emotionally shocked and humiliated, so she sued for emotional distress; trial court dismissed her case because she did not consume or touch the condom; Supreme court of Georgia reversed it and sent it back for a new trial- case said it was not absolutely required for a plaintiff to “consume”