Case 12-2 Williams V. Braum Ice Cream Stores, Inc

Case 12-2 Williams v. Braum Ice Cream Stores, Inc.

Oklahoma Court of Appeals 534 P.2d 700 (1974)

Plaintiff Williams purchased a cherry pecan ice cream cone from the defendant’s shop. While eating the ice cream, she broke her tooth on a cherry pit that was in the ice cream. She sued defendant Braum Ice Cream Stores, Inc., for breach of implied warranty of merchantability. The trial court ruled in favor of the defendant, and the plaintiff appealed.

Judge Reynolds

There is a division of authority as to the test to be applied where injury is suffered from an object in food or drink sold to be consumed on or off the premises. Some courts hold there is no breach of implied warranty on the part of a restaurant if the object in the food was “natural” to the food served. These jurisdictions recognize that the vendor is held to impliedly warrant the fitness of food, or that he may be liable in negligence in failing to use ordinary care in its preparation, but deny recovery as a matter of law when the substance found in the food is natural to the ingredients of the type of food served. This rule, labeled the “foreign-natural test” by many jurists, is predicated on the view that the practical difficulties of separation of ingredients in the course of food preparation (bones from meat or fish, seeds from fruit, and nutshell from the nut meat) is a matter of common knowledge. Under this natural theory, there may be a recovery only if the object is “foreign” to the food served. How far can the “foreign-natural test” be expanded? How many bones from meat or fish, seeds from fruit, nutshells from the nut meat or other natural indigestible substances are unacceptable under the “foreign-natural test”?

The other line of authorities hold[s] that the test to be applied is what should “reasonably be expected” by a customer in the food sold to him.

[State law] provides in pertinent part as follows:

1. . . . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

2. Goods to be merchantable must be at least such as

a. are fit for the ordinary purposes for which such goods are used; . . . In Zabner v. Howard Johnson’s Inc. . . . the Court held:

The “foreign-natural” test as applied as a matter of law by the trial court does not recommend itself to us as being logical or desirable. The reasoning applied in this test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. . . .

Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. A nutshell natural to nut meat can cause as much harm as a foreign substance, such as a pebble, piece of wire, or glass. All are indigestible and likely to cause injury. Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.

The “reasonable expectation” test as applied to an action for breach of implied warranty is keyed to what is “reasonably” fit. If it is found that the pit of a cherry should be anticipated in cherry-pecan ice cream and guarded against by the consumer, then the ice cream was reasonably fit under the implied warranty.

In some instances, objects which are “natural” to the type of food but which are generally not found in the style of the food as prepared, are held to be the equivalent of a foreign substance.

We hold that the better legal theory to be applied in such cases is the “reasonable expectation” theory, rather than the “naturalness” theory as applied by the trial court. What should be reasonably expected by the consumer is a jury question, and the question of whether plaintiff acted in a reasonable manner in eating the ice cream cone is also a fact question to be decided by the jury. *

Reversed and remanded in favor of Plaintiff, Williams.

Critical Thinking About The Law

The criteria selected are important in determining the outcome of a case. Put simply, depending on the court’s selection from many possible criteria, it can reach multiple conclusions. Judging a case according to criteria X, Y, and Z can yield a vastly different decision than if the same case were judged according to criteria A, B, and C.

Case 12-2 illustrates the foregoing assertion. The trial court had made a legal decision based on criterion X, namely, the “foreign-natural” test. The appeals court, however, held that the trial court must redecide the case, this time on the basis of criterion Y, or the “reasonable expectation” test.

The critical thinking questions enable you to examine carefully the key differences between the two tests, including the possible implications. The larger project of the questions is to increase your awareness of the extent to which a legal decision is dependent upon the criteria chosen to reach that decision.

1. What is the fundamental difference between the natures of the two tests discussed by the court in Case 12-2?

Clue: Reread the discussion of the two tests to formulate your answer.

2. Which of the two tests is more likely to yield ambiguous reasoning when applied?

Clue: Refer to your answer in question 1.

Implied Warranty of Fitness for a Particular Purpose

 A second implied warranty that may be the basis for a product liability case is the  implied warranty of fitness for a particular purpose , which arises when a seller knows that the purchaser wants to purchase a good for a particular use. The seller tells the consumer that the good can be used for that purpose, and the buyer reasonably relies on the seller’s expertise and purchases the product. If the good cannot be used for that purpose, and, as a result of the purchaser’s attempt to use the good for that purpose, the consumer is injured, a product liability action for breach of warranty of fitness for a particular purpose is justified. For example, if a farmer needed oil for his irrigation engine and he went to a store and told the seller exactly what model irrigation engine he needed oil for, the seller would be creating an implied warranty of fitness for a particular purpose by picking up a can of oil, handing it to the farmer, and saying, “This is the product you need.” If the farmer purchases the recommended oil, uses it in the engine, and the engine explodes because the oil was not heavy enough, the seller would have breached the warranty of fitness for a particular purpose. If the farmer were injured by the explosion, he would be able to recover on the basis of breach of warranty.

implied warranty of fitness for a particular purpose

A warranty that arises when the seller tells the consumer a good is fit for a specific use.

Express Warranties

The seller or the manufacturer may also be held liable for breach of an express warranty, which is created by a seller in one of three ways: by describing the goods, by making a promise or affirmation of fact about the goods, or by providing a model or sample of the good. If the goods fail to meet the description, fail to do what the seller claimed they would do, or fail to be the same as the model or sample, the seller has breached an express warranty. For example, if a 200-pound man asks a seller whether a ladder will hold a 200-pound man without breaking, the seller who says that it will is affirming a fact and is thus expressly warranting that the ladder will hold a 200-pound man without breaking. If the purchaser takes the ladder home, climbs up on it, and it breaks under his weight, causing him to fall to the ground, he may bring a product liability action against the seller on the basis of breach of an express warranty.

A memorable example of an express warranty is the claim many companies made that their software was “Y2K compliant.” When the nation was in fear of a possible chaotic result of the date change to the year 2000, many computer companies came out with “Year 2000–compliant” software. This claim, however, was usually written outside of the contract and, therefore, was an express warranty. Because businesses had the potential to lose a lot of money after Y2K, they felt that they needed someone to help reimburse what they might lose. Many decided that the easiest targets would be these “Y2K-safe” software companies, because the businesses could sue on the basis of breach of an express warranty. 11

11  J. L. Dam, “Can Business Sue for Cost of Fixing the ‘Year 2000’ Problem?” Lawyers Weekly USA,

Defenses to Breach-of-Warranty Actions

Two common defenses used in cases based on breach of warranty arise from the UCC; they make sense in a commercial setting when a transaction is between two businesspeople, but they make little—if any—sense in the context of a consumer injury. Therefore, the courts have found ways to limit the use of these defenses in product liability cases in most states.

The first such defense is that the purchaser failed to give the seller notice within a reasonable time after he or she knew or should have known of the breach of warranty, as required by the UCC. Obviously, most consumers would not be aware of this rule and, as a result, many early breach-of-warranty cases were lost. Most courts today avoid this requirement by holding (1) that a long delay is reasonable under the particular circumstances, (2) that the section imposing the notice requirement was not intended to apply to personal injury situations, or (3) that the requirement is inapplicable between parties who have not dealt with each other, as when a consumer is suing a manufacturer.

The second defense is the existence of a  disclaimer . A seller or manufacturer may relieve itself of liability for breach of warranty in advance through the use of disclaimers. The disclaimer may say (1) that no warranties are made (as is), (2) that the manufacturer or seller warrants only against certain consequences or defects, or (3) that liability is limited to repair, replacement, or return of the product price.


Disavowal of liability for breach of warranty by the manufacturer or seller of a good in advance of the sale of the good.

Again, these disclaimers make sense in a commercial context, but seem somewhat harsh in the case of consumer transactions. Thus, the courts do not look with favor on disclaimers. First, the disclaimer must be clear; in many cases, courts have rejected the defendant’s use of a disclaimer as a defense on the ground that the retail purchaser either did not see the disclaimer or did not understand it. Thus, a businessperson using disclaimers to limit liability must be sure that the disclaimers are very plainly stated on an integral part of the product or package that will not be removed before retail purchase by the consumer. In some cases, however, despite clear disclaimers, courts have held disclaimers to consumers invalid, stating either that these disclaimers are unenforceable adhesion contracts resulting from gross inequities of bargaining power and are, therefore, unenforceable; or that they are unconscionable and contrary to the policy of the law. The UCC, in fact, now contains a provision stating that a limitation of consequential damages for injury to a person in the case of consumer goods is prima facie unconscionable.

The statute of limitations may also be used defensively in a case based on strict liability for breach of warranty. Under the UCC, the statute of limitations runs four years from the date on which the cause of action arises. In an action based on breach of warranty, the cause of action, according to the UCC, arises at the time of the sale. This rule would severely limit actions for breach of warranty, as defects often do not cause harm immediately. Section 2-725(2) of the UCC, however, changes the time that the cause of action arises to the date when the breach of warranty is or should have been discovered when a warranty “explicitly extends to the future performance of the goods, and the discovery of the breach must await the time of performance.” This section, when applicable, makes the statute of limitations less of a potential problem for the plaintiff. In a few states, courts have simply decided to apply the tort statute of limitations, as running from the date of injury or the date when the defect was or should have been discovered, to all product liability cases grounded in breach of warranty.

Strict Liability in Tort

The third and most prevalent theory of product liability used during the past three decades is strict liability in tort, established in the 1963 case of Greenman v. Yuba Power Products Co. 12  and incorporated in Section 402A of the Restatement (Second) of Torts. This section reads as follows:

12  59 Cal.2d 57 (1962).

1. One who sells any product in a defective condition, unreasonably dangerous to the user or consumer or his family is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

a. the seller is engaged in the business of selling such a product; and

b. it is expected to and does reach the consumer or user without substantial change in the condition in which it was sold.

2. The rule stated in Subsection (1) applies although

a. the seller has exercised all possible care in the preparation and sale of his product; and

b. the user or consumer has not bought the product from or entered into any contractual relation with the seller. *

Under this theory, the manufacturer, distributor, or retailer may be held liable to any reasonably foreseeable injured party. Unlike causes of action based on negligence or, to a lesser degree, breach of warranty, product liability actions based on strict liability in tort focus on the product, not on the producer or seller. The degree of care exercised by the defendant is not an issue in these cases. The issue in such cases is whether the product was in a “defective condition, unreasonably dangerous” when sold. To succeed in a strict liability action, the plaintiff must prove that

1. the product was defective when sold;

2. the defective condition rendered the product unreasonably dangerous; and

3. the product was the cause of the plaintiff’s injury.

Applying the Law to the Facts . . .

Let’s say that Amy buys slippers from a slipper manufacturer named Slip-On. A year later she falls down the stairs in her home while wearing the slippers. Subsequently she brings a strict liability action against Slip-On. She proves that she fell down the stairs because her slippers were missing a grip on the sole that would allow for stable traction on all hard surfaces, thus rendering her slippers in their current state unsafe for walking on wood floors, tile, etc. Amy has proved two of the three prongs she needs to be successful against Slip-On. What prong is Amy missing?

The defect is usually the most difficult part of the case for the plaintiff to establish. A product may be defective because of (1) some flaw or abnormality in its construction or marketing that led to its being more dangerous than it otherwise would have been, (2) a failure by the manufacturer or seller to adequately warn of a risk or hazard associated with the product, or (3) a design that is defective. For example, in 1966, Mr. Dolinski purchased a bottle of Squirt from a vending machine and drank most of the contents. He soon felt ill and discovered a decomposed mouse and mouse feces at the bottom of the bottle. He suffered physical and mental distress and avoided soft drinks after this experience. Under strict liability in tort, he sued that bottle manufacturer and distributor, Shoshone Coca-Cola Bottling Company, and a jury awarded him $2,500. Moreover, this was the first case in which the Nevada state courts recognized the doctrine of strict liability. 13

13  Dolinski v. Shoshone Coca-Cola, 82 Nev. 439, 420 P.2d 855 (1966).

A defect in manufacture or marketing generally involves a specific product that does not meet the manufacturer’s specifications. Proof of such a defect is generally provided in one or both of two ways: (1) experts testify as to the type of flaw that could have caused the accident that led to the plaintiff’s injury; (2) evidence of the circumstances surrounding the accident led the jury to infer that the accident must have been caused by a defect in the product. Notice in the following case how the court makes an analogy to res ipsa loquitur when finding the existence of a defect caused by the defendant.

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