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Restaurant Sued for Swallowed Broken Shell – The Reasonable Expectation Test

A Buca di Beppo restaurant was sued by a customer who was seriously injured when he swallowed a broken mussel shell. The trial court in Broward County initially granted the defendant Buca’s motion for summary judgment which was reversed by the Fourth District Court of Appeal based on the application of the “reasonable expectation” test to the facts of the case.

Now the customer is entitled to a jury trial and our personal injury lawyers at the Miami office of the Wolfson Law Firm firmly believe the 4th DCA got this one right.

Linguine Frutti di Mare with the Broken Mussel Shells

In 2014, the customer went to a Buca restaurant and ordered “Linguine Frutti di Mare”. This dish is described as linguine with baby clams, shrimp, mussels and calamari in a red spicy clam sauce. The menu shows a photograph of the linguine with approximately twenty mussel shells.

The standard operating procedure at Buca is for the chefs to place the bed of linguine in the middle of the plate and surround it with the mussels and other seafood. The corporate representative testified that if any shell is broken or unopened it is removed from the dish.

The customer testified that he had almost finished his dish when he put the last bite in his mouth. Suddenly he felt something going down his throat cutting him. He felt as if his chest was cracking open and that he had swallowed a knife. The customer was rushed to the hospital where surgery was performed and a broken mussel shell was extracted. The shell was approximately 1.5 to 2 inches long.

The customer testified that he did not break any shells while he was eating and never expected to find a broken shell in his dish. The restaurant took the position that the customer was at fault and responsible for his own injuries based on the suggestion that the customer had himself broken the shell while eating.

After a lawsuit was filed, the restaurant filed a motion for summary judgment arguing that there were no genuine issues of material fact and that the customer was at fault. The trial court agreed and entered judgment for the restaurant. The customer appealed to the Fourth District of Appeal.

The Reasonable Expectation Test

The appellate court identified two genuine issues of fact: who broke the mussel shell and was the broken shell submerged or concealed in the pasta when it was served. These issues would be critical in a jury’s determination of whether the restaurant was negligent.

If the customer broke the mussel shell and it was not served submerged in the pasta, it would be difficult for any jury to conclude that Buca was negligent for serving this order. However, if Buca did in fact serve the customer a broken shell and/or it was submerged and not visible when the dish was given to the customer, then the jury could determine that no customer would reasonably expect to locate a broken shell in this dish.

The appellate court applied a “reasonable expectation” test to determine if any restaurant is negligent when it serves a patron “a harmful substance.” The test should be what is “reasonably expected” by the customer in the food as served, not necessarily what might be natural to the ingredients of that food prior to preparation.

As applied to the customer’s case against Buca, the patron would reasonably expect whole, not broken, mussel shells with the linguine. The court declared that the key questions in the customer’s case are whether patron was served a broken mussel shell and whether it was hidden, submerged or concealed in the pasta. These are genuine issues of material fact for a jury.

Conclusion

When any customer is served a harmful substance by a restaurant, it will likely be a question for the jury as to whether the restaurant was negligent. The issue before the jury will be what the customer could reasonably expect when they made their order. In the Buca case, if the shell was broken and/or concealed when served the Buca may very well be liable for the customer’s medical bills, lost wages, if any, and his pain and suffering.

If you are injured in a restaurant, you should consult with a personal injury lawyer if only to determine what is in your best legal interests. At the Wolfson Law Firm, our Miami injury lawyers have been helping personal injury victims in South Florida since 1963 and we are available to help you too. Just call us at (305) 285-1115 for your free consultation today.