It is probably an article of faith out there among the lay populace that if you discover that the object causing your previously unexplained cough of two years’ duration is a two-inch long fragment of a plastic eating utensil that has somehow entered your lung, and if you find the logo of a well-known restaurant chain on the utensil, you expect that someone will show up delivering you a large sum of money. A recent decision of the United States District Court for the Eastern District of North Carolina reminds us, not so fast.

In a well-reasoned decision following North Carolina law, the judge found the plaintiff’s claim that the defendants had sold him a food item that contained the utensil and he had unwittingly digested it impossible to swallow. This was because the plaintiff had to stack “inference upon inference” in his attempt to prove that the restaurant had anything to do with this injury. 


First, there was no proof that the object had been in any food (under the Uniform Commercial Code, food is "goods") the restaurant had sold him, a necessary factor in his theory of breach of the warranty of merchantability. The plaintiff relied only on circumstantial evidence—he claimed he had eaten at that restaurant, no other restaurant in its chain and no similar restaurant (though in other restaurants) in the relevant time period. But that was not enough. His doctors merely testified that the object caused his symptoms; they didn’t have anything to say about how it got there. Defendants’ experts, on the other hand, showed what you might expect: objects like that don’t get into your lungs when you simply eat them. Instead, there must be some “severe mental depression” that suppresses the coughing instinct. What can cause that? Drug or alcohol abuse. And there was substantial evidence the plaintiff was using both around the time he took ill.


Moreover, when foreign objects get into the lungs, unlike the stomach, they don’t degrade or degenerate. So the absence of any food-related objects in his lungs along with the plastic negated the likelihood that the plastic entered his lungs while he was eating the restaurant’s food.

The utensils were available free to anyone who came to the restaurant, or any other one in the chain, which again did not support any inference that the only way one could have entered his lung was through ingestion of the restaurant’s food. And there was no evidence that anything like this had ever happened before, or that among the tiny number of complaints of foreign objects in the restaurant’s food was there a fact pattern even remotely similar. So the complaint was dismissed on summary judgment.

This case demonstrates more than that there are successful defenses to claims for violation of the warranty of merchantability even in a case where a defendant’s logo is found in an unusual place. Causation is not something that can be assumed, or proven by piling “inference upon inference,” and is a defense that should always be examined.