“Reasonable Expectations” Meets “Res Ipsa Loquitur” at the Boqueria Soho: Bone of Legal Contention–Tapas Dish with Steak & Piquillo Pepper Confit

This was originally posted on the SGR Blog.

On September 23, 2016, Yassaman Kazemi was dining at Boqueria Soho, LLC. She ordered a tapas dish with sirloin steak and piquillo pepper confit. Yassaman claimed that when she bit into the piquillo pepper, she bit into a concealed piece of a sharp bone which caused severe injuries. She claimed that she was entitled to summary judgment under the doctrine of res ipsa loquitur and implied warranty. And asserted that the failure to remove the sharp bone from the pepper constituted negligence as a matter of law.

Boqueria argued that there were numerous issues of fact that preclude summary judgment. Kazemi could not show whether the bone came from the steak; whether she bit into it while eating the steak; whether her companion cut the bone out of the steak and left it in a small plate of tapas before biting into the bone; whether Kazemi ordered a boneless steak entrée; and whether she should have reasonably anticipated finding a small bone shard in her steak.

Boqueria insisted that under the reasonable expectation test, the Court could not grant Kazemi’s motion because he should have reasonably anticipated bones in her steak.

Kazemie argued in reply that the incident is not one that would ordinarily occur in the absence of Boqueria’s negligence. And that under the reasonable expectation test, she should be able to recover.

In order to submit a case to a trier of fact based on res ipsa] a plaintiff must establish that the event (1) was of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant and (3) was not due to any voluntary action or contribution on the part of the plaintiff.

The reasonable expectation doctrine, as applied to an action to recover damages for common-law negligence, requires a restaurant owner to use ordinary care to remove from the food as served, such harmful substances as the consumer would not ordinarily anticipate. Finding a bone in a dish does not necessarily support a claim under this doctrine.

As an initial matter, the Court had to decide whether Kazemi could have reasonably anticipated that there would be a bone in the dish. Kazemi testified that she and Mount ordered a bunch of small plates for them to share. One of those was a steak dish. She did not remember whether she or Mr. Mount cut into the steak first.

Kazemi testified that when she was eating the vegetables that came with the steak dish, “I took a bite; I felt something hard. I had a pain, and I knew I bit into something that wasn’t a vegetable. I wasn’t sure what it was”. She contended that she spit it out and thought she saw what looked like a bone.

Based on the testimony, the Court denied the motion. The fact was that Kazemi ordered a steak dish with vegetables and bit into a bone while chewing on a vegetable. There was clearly an issue of fact with respect to whether she should have reasonably anticipated that a bone might be found in a steak dish. That the bone was found in the vegetables did not compel the Court to reach a different outcome. A bone could easily have been dislodged while cutting the steak and found its way into a forkful of vegetables.

This was not a case where Kazemi claimed she found a bone in a purely vegetarian dish or even that the steak dish was boneless. Under the reasonable expectation doctrine, there was an issue of fact regarding whether a patron at a restaurant might reasonably expect to find a bone in a steak dish regardless of the fact that the bone was found while eating the vegetables. For the same reasons, Kazemi was  not entitled to summary judgment on her implied warranty claim.

The Court also denied Kazemi’s res ipso loquitur claim. Boqueria did not have exclusive control over the dish—someone (either Kazemi or Mount) had to have cut into the steak and it was possible that the bone escaped from the steak and into the vegetables during that process.

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