Court Backs Diners’ Right to Sue Over Objects in Food : Laws: State justices modify 55-year-old doctrine in ruling restaurants liable if ‘natural’ items cause injury.

The state Supreme Court, heeding the plea of a diner who choked on a bone in his chicken enchilada, ruled Thursday that restaurant diners may sue for injuries from bones or other “natural” objects left carelessly in their food.

Modifying a 55-year-old legal doctrine, the court agreed unanimously that a negligence claim could be brought against a Bay Area restaurant by an auto mechanic who said he sustained $25,000 in medical bills to treat a severe throat injury from the one-inch bone fragment.

“We believe a patron can reasonably expect that a restaurateur will exercise reasonable care in preparing chicken enchiladas so that any natural substances contained in the food will not be either of such size, shape or quantity to cause injury when consumed,” the court said in an opinion by Chief Justice Malcolm M. Lucas.

It was “reasonably foreseeable” that a sizable bone could cause the unsuspecting patron substantial injury if swallowed, Lucas said.

However, the court, by a vote of 4 to 3, refused to allow patrons injured by a natural object to collect damages without proof of negligence by the restaurant.

Only when a harmful object is “foreign” to the food--such as a piece of wire or glass--may restaurants be held strictly liable for injuries, regardless of fault or negligence, the majority said.

The dissenters gagged on the majority’s distinctions between “natural” and “foreign” substances and predicted that the new rule will prove unworkable.

Justice Stanley Mosk, joined by Justice Joyce L. Kennard, said strict liability should be imposed whether the harmful object is a chicken bone or a piece of wire. Both had the same effect on the health of the consumer, Mosk noted.

In a separate dissent, Justice Armand Arabian said that under the court’s new standard, a diner victimized by a pebble would unfairly find it easier to sue than a patron taken ill from “ingesting a cow’s eye inside a hamburger patty.”

William L. Berg, attorney for Jack A. Clark, the restaurant patron in the case, said he was “very, very happy” with the decision and voiced confidence that Clark will prevail when the case goes to trial.

“He goes into a restaurant, orders an enchilada, the cooks prepare the meal . . . and a one-inch bone ends up in his throat,” said Berg. “That doesn’t happen unless there is negligence.”

An attorney for the restaurant, M. David DeSantis, expressed some disappointment but noted that the ruling’s requirement that negligence be proved provides significant protections against suits by diners. If negligence need not be proved, all a diner would have to show was that the meal was defective and that he was injured, DeSantis said.

In the case before the court, Clark said he had dined at the Mexicali Rose restaurant in Alameda, ordered and bit into a chicken enchilada and then fell choking to the floor after encountering the bone fragment. Faced with bills from three throat operations, he brought suit against the restaurant.

An Alameda County Superior Court judge rejected the restaurant’s move to dismiss the case. But a state Court of Appeal in San Francisco overturned that ruling, citing a 1936 high court decision granting broad protection to restaurants against suits for injuries from natural elements in food--such as a bone in a meat dish--regardless of any negligence.

In Thursday’s ruling, the justices declared that the 1936 ruling was out of date and, in the wake of court trends throughout the nation, that suits for negligence now should be permitted.

“If the presence of the natural substance is due to a restaurateur’s failure to exercise due care in food preparation, the injured patron may sue (for negligence),” Lucas said in an opinion joined by Justices Edward A. Panelli, Marvin R. Baxter and Ronald M. George.

In another action Thursday, the high court in a rare action upheld the conviction but overturned the death sentence issued to Gonzalo M. Marquez for a 1981 murder and other crimes in Los Angeles County.

In a 4-2 decision, the court found that Marquez’s trial counsel had failed to adequately seek background, character and other mitigating evidence that might have persuaded the jury to recommend life in prison without parole, rather than a death sentence.