Opinion
March 1, 1974
Appeal from the Civil Court of the City of New York, County of New York, HORTENSE GABEL, J.
Fogarty, McLaughlin Semel ( Douglas A. Boeckmann of counsel), for appellant.
Goldman Karp ( George Karp of counsel), for respondent.
In this action based upon negligence and breach of warranty of fitness, the plaintiff testified that her tooth was injured when she bit into a "nutted cheese" sandwich that contained a large, hard walnut shell, which shell was immediately turned over to defendant. Upon appeal, the defendant only raises two issues. First of all, an issue is raised as to whether the complaint should have been dismissed on the ground that the piece of walnut shell did not render the sandwich unfit for human consumption. Secondly, a question is presented as to whether the trial court erred in directing a verdict for plaintiff on both causes of action, warranting a reversal and a new trial.
With regard to the first issue, this tribunal now adopts the "reasonable expectation" doctrine. Under this doctrine, a plaintiff can recover for breach of implied warranty of fitness (Uniform Commercial Code, § 2-315) if it is found that the natural substance was not to be reasonably anticipated to be in the food, as served. As applied to an action for common-law negligence, the "reasonable expectation" test requires a restaurant owner to use ordinary care to remove from the food, as served, such harmful substance as the consumer would not ordinarily anticipate. This concept is in keeping with the rationale as expounded in the case of Zabner v. Howard Johnson's, Inc., 201 So.2d 824 [Fla., 1967; walnut in walnut ice cream]; ( Gimenez v. Great Atlantic and Pacific Tea Co., 264 N.Y. 390 [1934; struvite in shrimp]; O'Hare v. Petersen, 174 Misc. 481 [1940; struvite in shrimp]; Lore v. De Simone Bros., 12 Misc.2d 174 [1958; bone fragment in salami]; Varone v. Calarco, 22 Misc.2d 1085 [1960; struvite in canned tuna fish]).
Accordingly, under the "reasonable expectation" test, a prima facie case was delineated under both causes of action. Consequently, the trial court was correct in not dismissing the complaint.
With reference to the second issue, cognizance must be taken of the fact that the defendant had the opportunity but did not call anyone to refute plaintiff's contention as to the events of the accident, but on the contrary the witness called by the defendant confirmed plaintiff's version.
We do not question that normally the recognized rule is that the credibility of interested witnesses, even though their testimony be uncontroverted, when contradiction is impossible and its truthfulness or accuracy is open to a reasonable doubt, is exclusively for the jury ( Mercatante v. City of New York, 286 App. Div. 265, 268 [1st Dept., 1955]). The more delicate sub-issue thus presented is whether in this case plaintiff's uncontroverted testimony, when considered with the ordinary inferences to be drawn from the remainder of this particular record, and the small amount of the verdict ($575), is sufficient to warrant a reversal and a new trial notwithstanding the direction of a verdict on liability. We think not. The error did not result in prejudice to the defendant and may be disregarded (CPLR 2002).
Plaintiff moved for a directed verdict at the close of all the evidence. Over the opposition of defendant the motion was granted as to liability only.
Obviously defendant was in no position to refute plaintiff's recital of her entirely subjective experience of biting into a sandwich and encountering a hard object which gave rise to what she described as a sharp pain in her tooth and the feeling of a rough edge on it. In such a state of the record it was error to direct a verdict in plaintiff's favor. ( Piwowarski v. Cornwell, 273 N.Y. 226, 229.) In the absence of a pleading admission or other concession, it is almost always error to direct a verdict in favor of the party having the burden of proof, even though the evidence be uncontradicted. ( George Foltis, Inc. v. City of New York, 287 N.Y. 108, 122; Holmberg v. Donohue, 24 A.D.2d 569; Matter of Lakin v. MV AIC, 23 A.D.2d 488; Mercatante v. City of New York, 286 App. Div. 265, 268; 88 C.J.S., Trial, 667, 671, § 257, subd. g; 98 C.J.S., Witnesses, 479-484, § 542.) In contrast, Blum v. Fresh Grown Preserve Corp. ( 292 N.Y. 241) affirming dismissal of one of defendant's counterclaims, highlights the far more frequent circumstance in which direction of a verdict is warranted, because of insufficiency of evidence, against the party having the burden of proof. But where, as here, the only evidence of the fact of injury, causal relation and consequential pain, suffering, disability and expense is the testimony of plaintiff, an interested witness, the question of her credibility, upon which her whole case turns, is peculiarly and necessarily for the jury. ( Mercatante v. City of New York, supra.)
Furthermore, in proof of the cost and necessity of dental care and treatment, plaintiff did not so much as satisfy even the minimal requirements of CPLR 4533-a, relieving plaintiff of all but the need to produce a certified, paid bill as prima facie proof of the reasonable value and necessity of such dental services. Instead the court instructed the jury, "what would be the reasonable expenses that the repair of the tooth, and this is a matter for you in your own experience in life to judge. There is no expert, there is no dentist here. You six jurors will have to ascertain whether [ sic] a family dentist with an office at 577 Madison Avenue would have charged".
There is no warrant in the accepted rule of damages for such a charge. ( Gumb v. Twenty-Third St. Ry. Co., 114 N.Y. 411; Larsen v. Simonson, 243 App. Div. 563; Goodson v. New York City Ry. Co., 94 N.Y.S. 10: 25-A C.J.S., Damages, p. 240, § 185 [8]; 7A Warren's N.Y. Negligence, 22-27, § 2.02 [2].) Inviting the jury to speculate on what a dentist in a certain community might say or charge for dental services supplied to plaintiff can hardly be permitted to serve as a substitute for at least some vestigial proof by competent evidence of the fair and reasonable value of professional services and their causal relation to the alleged negligence of the defendant. Defendant's exception asserting "lack of medical testimony" was sufficient to preserve this error for review.
Zeal to more firmly establish, in this jurisdiction, the correct rule of the so-called "reasonable expectation test" and the smallness of the verdict, should not, in effect, be permitted, on appeal, to convert this $10,000 jury cause (with counsel on both sides) to the reduced status of a trivial small claims case. Yet that is the result accomplished here, to the great prejudice of defendant (which had no burden of proof), because it permits plaintiff to succeed on vague, amorphous considerations of substantial justice, despite acknowledged error in the trial court's radical departure from basic principles of jury-trial practice and procedure (cf. CCA, § 1804).
The modesty of the verdict, instead of supplying a practical reason for affirmance, may very well reflect the jury's skepticism of the merits of plaintiff's claim, upon which they were not permitted to pass. The errors here are so fundamental that even if it could be said, within the liberal contemplation of CPLR 4017 (as amd. by L. 1973, ch. 233, § 2), that there was no appropriate objection or exception by defendant, the interest of justice would require reversal and a new trial. ( Rivera v. W. R. Service Station, 34 A.D.2d 115, 117; Corcoran v. O'Brien, 21 A.D.2d 838; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4017.09; 7 idem., par. 5501.11.) The judgment should be reversed and a new trial ordered.
MARKOWITZ, P.J., and FRANK, J. concur in Per Curiam opinion; QUINN, J., dissents in memorandum.
Judgment affirmed, without costs.