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.