fast food fix

Robert B. Crary

It depends on whether you were injured by the metal. If you were injured by the metal in the hamburger then you could bring an action under several theories including breach of implied warranty, strict liability, and negligence.

As in any other negligence action, the plaintiff in an unwholesome food case must plead and prove existence of a duty of care on the part of the defendant manufacturer, producer, packer, bottler, or retailer; a breach of that duty; and a cognizable injury proximately caused by the breach.

Despite the relatively higher burden of proof on the plaintiff in a negligence action, as compared to a strict liability or breach of warranty action, a negligence action may offer certain advantages. Although privity of contract between the plaintiff and the defendant may be required in warranty actions, it is not a prerequisite to recovery in negligence actions. Thus, a person injured or made ill by a deleterious food or beverage product may recover from a remote party, such as the manufacturer. And, the plaintiff in a negligence action may be able to take advantage of a more favorable statute of limitations.

Under a strict liability action in a tort for physical harm caused by the consumption of a dangerous or contaminated food or beverage product any person suffering physical harm from eating or drinking the product may recover. However, for strict liability they must be able to prove that the product was defective and unreasonably dangerous product was defective when it left the fast food restaurant’s control, was in a substantially unchanged condition when it reached you, and consumption of the product caused you to suffer physical harm.

Under a breach of implied warranty action, persons who are reasonably expected to eat or drink the product generally may recover. In this situation, you need to be able to prove that product was unwholesome or unfit for human consumption, and therefore breached the warranty; and the failure of the product to conform to the warranty was the proximate cause of the physical harm you suffered.

Simply finding a piece of metal alone is not something you can recover for unless you can show some injury or damage.

Lawrence Neil Rogak

I agree with Attorney Crary's answer, and I would just add that finding a foreign object in one's food is not enough for a lawsuit. You have to have suffered some kind of injury. In some cases, plaintiffs have recovered for emotional distress at consuming a foreign object in food, if that emotional distress had physical symptoms and/or was serious enough to require psychiatric help. Keep in mind that not every foreign object found in food is actionable at law. It depends on whether the object is the kind of thing that naturally tends to occur in that kind of food, such as bone fragments in meat, pits in "pitted" fruit, sand or tiny stones in seafood, etc. Right now you're not even sure what it was you found in your hamburger. It probably doesn't matter, because you weren't hurt, but you might want to get the object checked out to see what it is, just to satisfy your curiosity. On the other hand maybe you're better off not knowing.

Paul D Friedman

Anyone can sue anyone for anything, however, to be successful you have to prove the restaurant created the hazard, knew or should have known of the hazard and it caused you some damages.

Jason Garrett Epstein

The bottom line is that if you were not injured, what would you want done? The only remedy the law provides is for money damages, and if you can't prove injury, then there is basically nothing to do.