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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Personal Injury Law
Satisfied Customers: 2982
Experience:  personal injury and medical malpractice attorney
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I was at a popular restaurant chain in the US but on vacation

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I was at a popular restaurant chain in the US but on vacation in FL. I found an object in my soda after the ice melted, large enough for me to have choked and died if swallowed. What shall I do? Is this worthy of a lawsuit?
Submitted: 2 years ago.
Category: Personal Injury Law
Expert:  Christopher B, Esq replied 2 years ago.
See below for case law and #3 says, Doyle v. Pillsbury Co. "When a claim is based on an inert foreign object in a food product, we continue to require ingestion of a portion of the food before liability arises." Unless you ingested the object in Florida, you will not be able to recover Florida also uses the "reasonable expectation test" which means, "whether the presence of the harmful substance constitutes a breach of implied warranty is whether the consumer can reasonably expect to find the substance in the food as served." So without damages it is probably not worthy of a lawsuit but to be sure you should consult your local Florida attorney to review the entire facts of your case. Review the case law below in order to see if it precludes or fits your particular situation.CASE LAW:Foreign Object:Reasonable Expectation Test - Consumer injured molar when she bit down on a piece of clam shell found in a can of clam chowder. Court found that it is reasonable to expect to find "[a]n occasional piece of claim shell in a bowl of clam chowder . . . ." Id. at 873. Maker of the chowder and the grocery store were found not liable. Koperwas v. Publix Supermarkets, Inc., 534 So.2d 872 (Fla. Dist. Ct. App. 1988).Negligence - Consumer dissolved donut in milk because of an abscessed tooth and, while drinking the milk from a straw, a piece of wire from the doughnut lodged in her throat. Court found that the plaintiff was not comparatively negligent for not chewing her doughnut. "In a breach of an implied warranty action based on the presence of a harmful substance in food, the test of whether the presence of the harmful substance constitutes a breach of implied warranty is whether the consumer can reasonably expect to find the substance in the food as served.". Coulterv. American Bakeries Co., 530 So.2d 1009 -1011 (Fla. Dist. Ct. Appl. 1988).Negligence, Strict Liability, Breach of Implied Warranty - Consumer found a large insect floating in a can of peas, jumped back in alarm, fell and injured herself. The court found that the impact rule barred the consumer's action based on negligence, strict liability, and breach of warranty grounds. "When a claim is based on an inert foreign object in a food product, we continue to require ingestion of a portion of the food before liability arises." Doyle v. Pillsbury Co., 476 So.2d 1271 - 1272 (Fla. 1985).Liability - Consumers of beverage that appeared to contain a used condom suffered from nausea and became concerned regarding what they had ingested. The court held "that a plaintiff need not prove the existence of a physical injury in order to recover damages for emotional injuries caused by the consumption of a contaminated food or beverage. . ." "[T]hose who market foodstuffs should foresee and expect to bear responsibility for the emotional and physical harm caused by someone consuming a food product that is contaminated by a foreign substance." Hagan v. Coca-Cola bottling Co., 804 So.2d 1234, 1241 (Fla. 2001).Negligence - Consumer discovered foreign substance that resembled a rat without hair in his soft drink bottle and, consequently became nauseated and vomited. Directed verdict based on the impact rule was overturned. Court adopted rule that where there is a fair preponderance of evidence of a proximate causal relationship between a negligent act and a reasonably foreseeable mental and emotional reaction by a foreseeable plaintiff, proven damages are compensable. There must be, however, a physical impact or objective physical symptom in response to the foreign substance. Way v. Tampa Coca Cola Bottling Co., 260 So.2d 288 (Fla. Dist Ct. App. 1972).
Expert:  Christopher B, Esq replied 2 years ago.
I see you have reviewed my answer, do you have any further questions? If not, please do not forget to positively rate my answer (There should be smiley faces or a 1-5 ranking on my answer. I would appreciate a good or excellent rating) as this is the only way that I am compensated for my work.
Expert:  Christopher B, Esq replied 2 years ago.
Any chance for a positive rating?
Expert:  Christopher B, Esq replied 2 years ago.
Do you need help with the rating system? We expect to answer these questions with the expectation that our work will be compensated by the site. Without your positive rating that won't happen, so if you could take the extra step and help me out, I would appreciate it. There should be smiley faces or numbers from 1-5 next to my answer, an excellent or good rating would be fantastic.