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Published: 7/5/2009

Pizza was disgusting, but maybe not actionable

Dear Dale: When my husband and I were eating our carry-out pizza recently, my husband bit into a piece of a condom that was stuck inside the cheese. You can imagine how furious he was, especially when the pizza shop ignored him when he tried to complain. We ve never sued anyone before, but we re both mad enough that we wanted to know our options.

Answer: You really can t make this stuff up, can you?

OK, arguably you have the makings for a lawsuit, but the real question here probably will be whether your husband had any injuries as a result of biting into the condom. Being thoroughly grossed out is not an actionable claim unless it was accompanied by psychological trauma as evidenced by treatment or something of that nature.

A claim could be approached in a few different ways. Ohio has laws that prohibit producing, serving, or selling food that is poisonous or injurious to one s health. A few garden variety examples would be food poisoning at a restaurant, or someone who breaks a tooth by biting into a sandwich containing a foreign object. The foreign object can t be something that might be an expected by-product. For example, a chicken bone in a chicken salad sandwich wouldn t be considered an adulterated food.

The allegation in any lawsuit would be that the restaurant or food supplier acted negligently. To prove a negligence claim, the person bringing the suit must show the defendant had owed a duty to the plaintiff to act in a certain way, the duty was breached, the breach caused the alleged harm, and damages resulted. That s an admittedly loose description, but that s the gist.

If the restaurant or manufacturer has violated the law, it can be found negligent per se. That makes life a bit easier for the person bringing the suit because he or she doesn t have to show that a duty was owed or breached. Nonetheless, the person bringing the suit would have to prove that some type of injury or damage resulted. In other words, you don t win just by showing a violation of the law.

Even if state law wasn t violated, the person on the receiving end of tainted food can bring a negligence claim.

So, what does that mean for your husband s case? Let s say he choked on the condom and stopped breathing before being resuscitated in the hospital. Or he became so traumatized by the incident that he had a hard time eating, lost an alarming amount of weight, and required psychological treatment. Then you ve got some real injuries and related medical expenses. Without something tangible, it s probably not worth making a claim.

That said, another angle to think about would be whether punitive damages might be available in this situation. Punitive damages are designed to punish and deter certain behavior. They re awarded in some cases when the defendant s conduct was outrageous or malicious. I d have to know a lot more about the specifics of how this situation occurred to say whether they might be available here.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney.

Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604. His blog is at toledocaraccidentlawyerblog.com



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