Case Challenges Doctrine Protecting Restaurants : Jurisprudence: A diner who was injured when a bone lodged in his throat is suing for negligence. The state Supreme Court has agreed to decide whether he and others can collect.

TIMES LEGAL AFFAIRS WRITER

Three years ago, Jack A. Clark, a 36-year-old auto mechanic, sat down to dinner at the Mexicali Rose restaurant in nearby Alameda and bit into a hand-prepared chicken enchilada.

Suddenly, according to his lawyer, Clark was on the floor choking from a one-inch bone caught in his throat. Suffering serious injuries, he was rushed by ambulance to a hospital. Three throat operations later, his medical bills exceeded $25,000.

Like a flurry of other diners who recently have encountered hidden hazards in their food, Clark sought damages from the restaurant for negligence. But whether he and others can collect is a question that has divided state appeals courts. Now the California Supreme Court has stepped in to provide an answer.

The high court will hear arguments on Tuesday in Sacramento in Clark's case against Mexicali Rose, with a decision due by early next year. At issue is whether the justices should overturn a half-century-old doctrine that has barred suits by diners when a bone or other substance causing injury was a "naturally occurring" component of the dish that was served.

Under that rule, patrons are expected to know that they may find a bone in their fish, a nutshell in their pastry or a pit in their fruit dish--and to use their eyes and utensils to guard against such dangers. The presence in food of foreign objects--glass, wire or nails--is another matter, for which a restaurant can be held liable.

Trial lawyers and other critics say the doctrine is far out of date--particularly in an era of mass-produced, ready-prepared foods that consumers devour with hardly a thought of risk. When restaurants fail to exercise "due care" in preparing meals, they should be legally accountable, whether the harmful object was "natural" or not, critics say.

"Anyway you cut it, it's the result of someone not doing their job in a reasonably competent manner," Ian Herzog, president of the California Trial Lawyers Assn., said last week. "Why should it make a difference whether an injury was caused by a natural or artificial object? This rule is archaic."

Attorneys for Mexicali Rose and a national trade association that is backing the restaurant say that even with extraordinary care, it is inevitable that a bone or other natural object will sometimes turn up in a dish. They warn that expanding the law to allow restaurants, suppliers and manufacturers to be sued in such circumstances could flood the state's courts with dozens--if not hundreds--of lawsuits.

Leonard R. Stein of San Francisco, attorney for the 600-member National Food Processors Assn., says diners should be alert for natural objects such as bones and follow the adage, "chew before they swallow."

"There are certain situations where responsibility is appropriately shared by the consumer," said Stein. "Common sense should have a strong place in the law."

For decades, California judges have followed a 1936 ruling by the state Supreme Court protecting restaurants from suit over injuries sustained from a natural element in food they serve, regardless of any negligence.

The 55-year-old decision came in a case where a diner was hurt from a bone in a chicken pie he had ordered. The high court agreed that restaurants were obliged to provide "reasonably fit" food, but said it was "common knowledge" that chicken pies sometimes contain chicken bones. "Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones," the court said.

The rule announced for California in 1936 remains the law in several states. But some other states have widened the potential liability of restaurants, allowing damages when injured diners "reasonably expected" their meals to be free of hazards, natural or foreign.

In recent years, appeals courts in California have been divided over how to apply the 1936 ruling and when to allow injured diners to bring suit.

An appellate panel in Los Angeles held in 1989 that a Granada Hills restaurant could be sued by Patrice F. Evart, who said she broke a tooth from a bone fragment in a hamburger. The panel said that Evart could argue that it was not common knowledge that hamburgers sometimes contain beef bone and that she could not reasonably have anticipated its presence in her food. The case was later settled out of court.

A Court of Appeal in San Francisco ruled earlier this year that William Kilpatrick could sue a hotel after suffering food poisoning from tainted raw oysters he got from room service. But another panel in San Diego last year barred Lester Blanchard from suing over a three-inch bone he encountered in a turkey sandwich.

In the Clark case, an Alameda County Superior Court judge refused the restaurant's request to throw out the suit. But an appellate court in San Francisco overturned that decision, saying the 1936 high court ruling prevented the case from going to trial. Nonetheless, one panel member, Appellate Justice Marc Poche, said he believed that the 1936 case was "wrongly decided," and urged the high court to reconsider the issue.

Clark's lawyer, William L. Berg of Alameda, is contending that if his client is barred by the high court from suing, restaurants will have reduced the incentive to be careful in preparing food.

Restaurants, Berg argues, should be held liable for injuries in such circumstances whether or not they are negligent. The cost of injury can best be borne by the makers and sellers of harmful products, not individual victims, the attorney said in a brief.

Scott A. Bovee of Oakland, attorney for Mexicali Rose, argues that restaurants--particularly smaller establishments that offer hand-prepared meals--should enjoy protection when a bone or other natural element inadvertently turns up in a dish.

Such hazards are different from a harmful chemical that a diner could not be expected to anticipate and detect, Bovee contends. But a bone in an enchilada can be detected before it causes harm, he says. In these instances, the attorney concludes, responsibility "lies at the mouth of the consumer."

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