Opinion
FSTCV156026683S
01-20-2017
Kemara Nuon v. The Stop & Shop Supermarket Company, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE [#104]
Irene P. Jacobs, J.
FACTS
In his Complaint, dated October 22, 2015, the plaintiff alleges that on or about October 7, 2013, he lost a tooth and sustained damage to adjacent teeth as a result of biting into a piece of bone left within ground beef he had purchased at the defendant's store. The plaintiff alleges that the defendant is liable under the Connecticut Product Liability Act, Connecticut General Statutes § 52-572n, et seq., because it failed to inspect the ground beef, it failed to dispose of " any tainted products, " it failed to warn the plaintiff that the ground beef " would contain anything that would cause physical harm, " and it failed to follow the guidelines of the State of Connecticut Department of Public Health and Food Protection Program. The plaintiff alleges that he sustained injuries as a result of the defendant's negligence and/or carelessness and seeks monetary damages for medical/dental care, loss of enjoyment of life, and pain and suffering.
On January 14, 2016, the defendant filed both the instant motion to strike the complaint and a supporting memorandum of law [#106], arguing that the plaintiff failed to plead sufficient facts to support the claim that his action falls within the Product Liability Act. The plaintiff filed an objection and opposing memorandum of law [#107], and the defendant filed a sur-reply to the plaintiff's objection [#112]. The matter appeared on the September 26, 2016 short calendar and is taken on the papers.
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994); Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The Connecticut Products Liability Act is the exclusive remedy for claims falling within its scope. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 562 A.2d 517 (1989). An essential element of proof is the defective product. The plaintiff alleges, in essence, that the ground meat was a defective product because it contained a piece of bone. (There is no allegation that the product was designed to contain a piece of bone.)
In its motion to strike, the defendant challenges the legal sufficiency of the complaint. The defendant asserts that a piece of bone is a naturally occurring item in meat. As such, the defendant contends, " under any analysis, " ground meat containing a piece of bone cannot be a defective product. Thus, the defendant argues, the complaint lacks the necessary allegation of defective product as required by the Connecticut Product Liability Act.
Specifically, the defendant asserts, the facts of the instant case are insufficient under either the " natural/foreign object" analysis or the " reasonable expectation" analysis. The " foreign/natural doctrine" provides that a food producer is not liable for anything found in the food product that naturally exists in the ingredients. Newton v. Standard Candy Co., No. 8:06CV242, 2008 WL 752599, (D.Neb., Mar. 19, 2008). The " reasonable expectation" test provides that a food producer will be liable for injuries caused by any substance, foreign or natural, which the consumer " would not reasonably have expected to find . . . in the product" Jackson v. Nestle Beich, Inc., 147 Ill.2d. 408, 589 N.E.2d 547, 168 Ill.Dec. 147 (1992). No Connecticut case has addressed the issue of the appropriate analysis to apply to the alleged fact pattern presented in the instant case, that in which a piece of bone encountered while eating ground meat causes injury to the individual eating the ground beef.
In Bifolck et al. v. Philip Morris, Inc., 324 Conn. 402 (2016), the Connecticut Supreme Court set forth the appropriate analysis in products liability cases alleging design defects. For claims alleging design defects, Connecticut follows § 402A of the Restatement (Second) of Torts 2. In relevant part to the current motion, the Court noted that all product liability claims require proof of a " defective condition unreasonably dangerous to the consumer or user." In a claim brought under a theory of strict liability, " a product may be unreasonably dangerous if it fails to meet consumers' minimum safety expectations or if its risks exceed its utility . . ." Bifolck, at 442. However, " unreasonably dangerous is not determined by consumer expectations . . . when such a claim may be brought under a theory of negligence." Bifolck, at 408 " . . . [I]t is the defendant's actual or imputed knowledge of the danger, not the plaintiffs, that is an essential element of negligence, which in turn gives rise to the defendant's duty to exercise reasonable care to protect users from that danger." Bifolck, at 443. Although the Court in Bifolck addressed the issues as applied to design defect cases, the Court did not expressly limit its analysis to design defect cases.
The defendant asserts that the ground meat in the instant case cannot be defective under any theory, because bone naturally occurs in meat. The defendant relies on decisions from other jurisdictions which have held that bones in food products are natural. See, for example Mexicali Rose v. Superior Court, 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (1992). (chicken bone found in a chicken pot pie is natural to the chicken). The defendant's argument fails. First, the case law is inconsistent and inconclusive; there is an ample number of cases in which courts have held that a bone is not a natural substance of meat. See, for example Estate of Stanley Pinkham v. Cargill, Inc., 2012 ME 85, 55 A.3d 1, (2012). Secondly, the issue in the instant case is not whether a bone is natural or foreign to meat; rather, the issue is whether the presence of the bone in the ground meat in the present case was unreasonably dangerous.
This court concludes that, when viewed in the light most favorable to the plaintiff, the facts provable in the complaint would support the plaintiff's cause of action. The defendant's motion to strike the complaint is denied.