Bits of Shell in Shellfish Is Natural, Not a Product Defect: Consumer Beware
Description Appeals court upheld the dismissal of a suit against a restaurant by a patron who suffered tooth damage from biting a piece of clam shell in fried clams. Such bits of shell are natural and consumers should be on their guard; the restaurant was not negligent for allowing a bit of shell to remain on the clam.
Topic Torts
Key Words Product Liability; Food; Reasonable Expectations
C A S E   S U M M A R Y
Facts Mitchell was eating fried clams at Friday's restaurant when she bit into a piece of clam shell and damaged a tooth. She sued Friday's and the clam supplier for injury due to defective product. The trial court dismissed the suit. Mitchell appealed.
Decision Affirmed. "The test should be what is 'reasonably expected' by the consumer in the good as served.... The defendant is not an insurer but has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances and the consumer of the food, as served, would not ordinarily anticipate and guard against." Here, "it can not be disputed that the piece of clam shell which caused Appellant's injury was natural to the clam strip which she consumed.... as a matter of law, one who eats clams can reasonably anticipate and guard against eating such a piece of shell."
Citation Mitchell v. Friday's, 2000 WL 1670860 (Ct. App., Ohio, 2000)

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