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October 12, 2013

THOMAS YOUNG | Merchants responsible for quality of food

— If you own a retail business and you sell a jar of pickles that are bad, can you be sued?

Here is a business person, a retailer, who did not package the pickles and who had no control over the packaging or the quality of the pickles, yet, if the pickles are bad, the retailer gets sued.

We will assume, as is generally the case, that the manufacturer also can be sued for having packaged food that could hurt people.

That’s of little solace to the retailer, however, when the sheriff hands him his copy of the lawsuit.

The law says that every selling merchant guarantees (whether or not he knows it) that the thing sold, like a jar of pickles, is merchantable.

To be merchantable, a thing has to be fit for the ordinary purpose for which it is to be used, and it must serve the purposes safely.

Pickles are meant to be eaten, and to be wholesome, and if they aren’t, the seller can be sued.

I admit it is unfair to the retailer, but the law wants to protect the innocent purchaser.

Not every injury, however, brings about liability.

The purchaser is charged with the knowledge that with some items there is a kind of built-in danger, and for those items the buyer has to assume the responsibility.

In 1964, the Massachusetts Supreme Court had before it the case of Webster vs. Blue Ship Tea Room Inc.

Webster, the claimant, had grown up in New England. She ordered a cup of fish chowder while dining at the Blue Ship Tea Room in Boston, and she choked on a fish bone in the soup.

The choking required two esophagoscopies, which were performed at Massachusetts General Hospital, after which she successfully sued the Blue Ship Tea Room and won a large award.

The Blue Ship Tea Room appealed, contending that all fish chowder has bones, and that anybody who buys it should know that.

The guarantee, you see, applies to food sold in restaurants as well as in stores.

The Massachusetts Supreme Court agreed with the Blue Ship Tea Room and took the jury’s award away from Webster.

When the Massachusetts justice wrote his opinion, he said, “It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from the bowl as he proceeds.”

As to food, the present law applies to food consumer on or off the premises, so check that pizza that was delivered to your home. It may be harboring a lawsuit, too.

Thomas Young, a graduate of Pitt and Harvard Law School, has been a lawyer in Johnstown since 1958. He is a former professor of business law at Pitt-Johnstown. Readers may send questions to Young in care of The Tribune-Democrat. The opinions expressed in this column are general in nature and may not apply to your situation. Consult your attorney for advice on specific legal matters.

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