Summary
In Vitiello v. Captain Bill's Restaurant, the Appellate Division for the Second Department applied the reasonable expectation test to a case where a diner alleged that she had been injured by a fish bone.
Summary of this case from Kaplan v. American Multi-Cinema, Inc.Opinion
March 1, 1993
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and any cross claims against the defendant are dismissed.
The evidence submitted in support of the defendant's motion was sufficient to warrant the granting of summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557). The plaintiff asserted that she was injured when she ate fish containing a bone at the defendant restaurant. The "reasonable expectation" doctrine, as applied to an action to recover damages for common-law negligence, requires a restaurant owner to use ordinary care to remove from the food as served, such harmful substances as the consumer would not ordinarily anticipate (see, Stark v. Chock Full O'Nuts, 77 Misc.2d 553). However, despite the waitress's statement that the fish had been fileted, the injured plaintiff had no right to expect a perfect piece of fish. "Everyone * * * knows that tiny bones may remain in even the best filets of fish" (Yong Cha Hong v. Marriott Corp., 656 F. Supp. 445, 449). Bracken, J.P., Lawrence, Miller, Copertino and Santucci, JJ., concur.