Here’s a little-known fact: under Massachusetts law, if you’re injured by a bone lodged in your throat after eating a prepared dish, whether you can recover for your injuries may depend on what kind of bone it is. If it’s a bone from a chicken pot pie, then you may have a viable claim. If it’s a fish bone from a bowl of chowder, then you probably don’t.

To explain why that’s the case, in this article we examine how Massachusetts law addresses claims of physical injury resulting from ingesting food. (We exclude from this discussion foodborne illnesses, which, though they involve similar legal basic issues to those described below, also typically feature some evidentiary and causal complexities that are beyond the scope of proving injuries from chicken and haddock bones.)

Two Typical Claims: Negligence and Breach of Warranty

When a person suffers an injury as a result of eating food – usually by chewing/swallowing something hard or sharp – two potential claims usually arise under Massachusetts law. A claim for negligence alleges that the preparer of the food did not exercise due care in its preparation and that the lack of care was the proximate cause of the injury. A claim for breach of the implied warranty of merchantability, which arises under Massachusetts General Law c. 106, s. 2-314, alleges that the food was not fit for the ordinary purpose for which it is used, which is to say, eating.

Proving Negligence Can be a Tall Order

A plaintiff who claims that the food preparer was negligent may face a hard road to recovering damages. In earlier times, before globalized commerce, it may have been relatively straightforward to demonstrate where food came from, how it was handled and by whom, in its journey from producer to plate. But in this day and age of industrialized, worldwide food production, demonstrating that a specific food item a consumer ingested was mishandled or poorly prepared by an identifiable defendant in a manner that led to injury can be a tricky proposition. Even when the source of the food and nature of its harmful element is easily identified, most reputable food producers keep detailed records of their health and safety efforts, which may help insulate them from claims they did not take due care. (To be clear, negligence claims relating to food injury are routinely asserted. They’re just usually more difficult and labor-intensive to prove.)

Breach of Implied Warranty (or, What’s in Your Chowder?)

In contrast, proving a breach of implied warranty of merchantability is, on the whole, a far simpler proposition under Massachusetts law. To be sure, it is still necessary to prove that ingesting food was the proximate cause of the plaintiff’s injury. But, the warranty statute spares a plaintiff the chore of proving that the defendant failed to exercise due care in preparing the food. Instead, all the plaintiff needs to show is that she would not have reasonably expected the food she ingested to contain the injury-causing ingredient.

Which brings us back to chowder, as so many Massachusetts stories do. In 1959, Priscilla D. Webster, a native New Englander, swallowed a fish bone lurking in a bowl of fish chowder she had ordered at the Blue Ship Tea Room restaurant. She sued, and eventually, the case reached the Massachusetts Supreme Judicial Court, the Commonwealth’s highest, where the court sought to determine whether Ms. Webster could have had a reasonable expectation of a bone-free cup of fish chowder. After conducting an exhaustive examination of the “culinary traditions of the Commonwealth” and the “gustatory adventure” of tucking into a serving of the famed dish, the court concluded that Ms. Webster could not have reasonably expected her chowder to be free of bones, especially considering her New England upbringing. And so, her claim for a breach of implied warranty failed.

The Webster decision lives on in Massachusetts law, having been cited as a reason to deny a claim arising from fish bones in a can of tuna, but also to affirm a claim relating to the bone in the aforementioned chicken pot pie. In every case, what matters is whether, given the particular circumstances, the food did not live up to the plaintiff’s reasonable expectation.

In the Event of Injury, Get Help and Preserve the Evidence

If you have suffered a physical injury as a consequence of eating a particular food, your first priority should, of course, be to seek any medical attention you need. Having done so, it may also be helpful to preserve the food you ate, and any foreign or unexpected object you found in it, as evidence of the cause of your injury. And, to evaluate your rights, contact an experienced Massachusetts personal injury attorney…even if what you ate was a steaming bowl of fish chowder.