Legal Question in Personal Injury in California

Re: Bit on olive pit and broke tooth

There was a case in the last 5 years before Supreme Court that probably resolved this issue with finality. There, it was held a chicken bone is inherently in the food, thus no liability, strict or otherwise.

Joel Selik

Re: Bit on olive pit and broke tooth

Res ipsa loquitur is not so much a theory of liability as it is a theory of proof; the liability would still have to be based upon negligence. Res ipsa would simply relieve the plaintiff of the burden of proving precisely what happened.

The adjuster is probably right that you can't establish strict liability. You would have to prove negligence, but who do you think was negligent? The restaurant? The business that sold the olives to the restaurant? The canner? The grower? You need to figure this out before proceeding. Then, you will still need to show that they reasonably should have been expected to find and remove the pit and that they were obligated to do so. As the adjuster said, proving such a duty will not be easy.

And the fact that there is no pit to use as evidence doesn't strike me as important at all. You have witnesses, and that should be enough to make your factual case.

An acquaintance of mine recently had a similar case and lost because, as your adjuster said, pits are an inherent risk when eating olives. This doesn't mean your case will have the same result, but you do need to take the argument seriously.

Re: Bit on olive pit and broke tooth

the adjuster is most likely correct in his/her assessment regarding strict liability since pits are inherently a risk associated with eating olives and such a rish presumably cannot easily be seen as "ultrahazarous" in nature. as far as the negligence theory goes, the duty would be that this pizza place must act reasonably as other pizza parlor's would in trying to eliminate such known risks as olive pit mishaps like the one your client unfortunately suffered. however, it may be hard to prove a breach here absent extensive research into the industry's standard of "what is deemed reasonable or unreasonable" in similar situations suffered by your client. the res ipso loquitur angle and theory you are pursuing is viable, but may also fail since you and your client do in fact know what caused his/her injury, and res ipsa loquitur typically is used when the person has no idea how he or she was injured, yet an injury is present. so, my best advice would be to research the breach element of your client's negligence claim and try to find similar cases and jury award/settlement comp. tables that will value and establish your case and that this pizza parlor breached it duty to act reasonably under the circumstances, especially since all other elements of your client's negligence case seem satisfied from the information given. hope this has helped in some way and best of luck!

Re: Bit on olive pit and broke tooth

Dear SGA,

Strict liability does not apply. The pit is inherent like a bone in chicken but it is not ordinary in a pizza, not customary, not anticipated and there is no reasonable expection of it. Negligence is the main theory.

There certainly is a duty of care because such injuries are forseeable. Assumption of the risk would not apply either. The Res Ipsa arguments are also good. But you may have to test all of this in litigation. Good Luck.