The Ninth Circuit's iPod Opinion and the Warranty of Merchantability
The warranty of merchantability is a favorite tool of plaintiff's attorneys in food liability cases. We have blogged a good deal about it.
In a case that does not involve food at all, but is sure to get a lot of publicity, the Ninth Circuit yesterday ruled that the common iPod does not breach the warranty of merchantability even if it can be used to damage your ear while wearing ear buds. The decision in Birdsong v. Apple, Inc. will be very helpful in defending future claims of breach of the warranty in many areas, including in relation to food.
The plaintiffs in Birdsong did not allege any injury to themselves. Rather, they alleged that the iPod earbuds were capable of producing 115 decibels of sound, that consumers may listen at unsafe levels and that iPod batteries last 12 to 14 hours and may be recharged, meaning that a consumer may listen for a long time. The plaintiffs requested relief in the form of iPods being modified to have noise-reduction features, better warnings and a decibel meter. The court was having none of it.
The plaintiffs do not allege the iPods failed to do anything they were designed to do nor do they allege that they, or any others, have suffered or are substantially certain to suffer inevitable hearing loss or other injury from iPod use. Accordingly, the district court correctly determined that the plaintiffs failed to allege sufficiently the breach of an implied warranty of merchantability.
The court's analysis may apply equally well to many of the recent food liability cases we've examined where the plaintiffs allege no specific injury to themselves or any inevitable injury to someone consuming the food they have targetted. The warranty of merchantability does not work to protect a consumer from misuse of an item, or use of the item in an absurd, unnatural or harmful way. No one should play heavy metal music on an iPod for 14 hours straight at full volume, and should not claim a breach of the warranty of merchantability if they do. And no one who has been diagnosed with any particular health condition should expect to be able to order anything off the menu at a national chain restaurant, in any quantity, and assume it will not exacerbate that condition.
The noted New York restaurateur and curmudgeon Kenny Shopsin takes this attitude toward people who expect his restaurant to cater to their health needs:
Some people tell me they're deathly allergic to something and that I have to make sure it's not in their food. I kick them out. I don't want to be responsible for anyone's life-or-death situation. I tell them they should eat in a hospital.
Most restaurateurs, big and small, are more accommodating than Kenny (whose autobiography/cookbook has the title Eat Me for a reason). But ultimately, they are providers of food, not doctors, dieticians, the FDA or the Health Department.
Happy (and healthy) New Year, everyone.
http://www.foodliabilitylaw.com/admin/trackback/174875
Not entirely clear to me how and why you can extrapolate the following conclusion from the iPod case:
"And no one who has been diagnosed with any particular health condition should expect to be able to order anything off the menu at a national chain restaurant, in any quantity, and assume it will not exacerbate that condition."
In the iPod case, you are talking about a "misuse" that is the predicate for the alleged liability. In the context of the ingestion of food at a national chain restaraunt, one is not ordinarily talking about "misuse" as a cause of the alleged injury. So I'm not entirely persauded by the analogy. Now there may be a food case where "misuse" might be a factor, such as the Tuna Fish Case in the Third Ciruit, where, unbelievably, the plainiff apparently ate nothing but mercury-containing tuna fish over a multi-year period. In such a situation, the iPod case may be a better analogy.
Arnie Friede
With all due respect, Mr. Friede, merchantability is a state of the goods at the time of sale, not a matter of misuse. To conform to the warranty of merchantability, the goods must meet the following criteria:
(2) Goods to be merchantable must be at least such as
•(a) pass without objection in the trade under the contract description; and
•(b) in the case of fungible goods, are of fair average quality within the description; and
•(c) are fit for the ordinary purposes for which such goods are used; and
•(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
•(e) are adequately contained, packaged, and labeled as the agreement may require; and
•(f) conform to the promise or affirmations of fact made on the container or label if any.
Food that is wholesome for the ordinary consumer will be "fit for the ordinary purposes for which such goods are used" even if they might cause a different reaction in you. My wife's ears hurt when she had iPod earbuds in them at any volume level; that doesn't make an iPod unmerchantable any more than ham is unmerchantable because it exacerbates someone's hypertension. In this regard, please see Clime v. Dewey Beach Enterprises, Inc., 841 F. Supp. 341 (D.Del. 1993), where the court granted summary judgment to a supplier of raw clams that caused the plaintiff to be rendered ill. The claims contained a naturally occurring bacterium that causes illness (and sometimes death) in a very small percentage of the population. Applying the "reasonable expectations" test, the court found the clams merchantable despite the effect of the clams on the plaintiff.
If you tell your server you are susceptible to bacterium in raw shellfish, he should probably not serve you any raw shellfish (there is no test for the bacterium that doesn't destroy the shellfish), unless he's going to kick you out of the restaurant like Kenny Shopsin. But that is the realm of either exprss warranties or warranties of fitness for a particular purpose. The plaintiffs' lawyers in most of these cases, because they are seeking to certify large class actions, appear to rely solely on the warranty of merchantability. And so long as the food is wholesome for the majority of the population, that will not be breached.