# Mexicali Rose v. Superior Court

> California Supreme Court · January 23, 1992 · 1 Cal. 4th 617

URL: https://www.frixlaw.com/law-library/cases/9530087

## Case

- **Full name:** MEXICALI ROSE Et Al., Petitioners, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; JACK A. CLARK, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** January 23, 1992
- **Citations:** 1 Cal. 4th 617; 4 Cal. Rptr. 2d 145; 92 Daily Journal DAR 1107; 822 P.2d 1292; 16 U.C.C. Rep. Serv. 2d (West) 607; 92 Cal. Daily Op. Serv. 712; 1992 Cal. LEXIS 4
- **Precedential status:** Published
- **Opinion:** Dissent by Arabian
- **Judges:** Lucas, Mosk, Arabian
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530087

## Opinion text

ARABIAN, J.—I dissent.
Plainly stated, the rule announced by the majority is this: If a restaurant patron becomes ill as the result of ingesting a cow’s eye inside a hamburger patty there may not be an assertion that the seller breached an implied warranty of merchantability, i.e., that the food was unfit for human consumption, because the injury-producing substance (the cow’s eye) was “natural” to the product served and therefore “reasonably” to be expected by the average consumer. However, if the same hamburger contains a pebble or a noxious insect, a claim of unfitness will lie because the injury-producing substance is “foreign” to the product. In my view, a ruling so at odds with fundamental fairness, public policy, and common sense cannot withstand informed scrutiny; worse, its legacy will be that it bred a regressive result. 1
To understand today’s decision, it is necessary to undertake a brief review of the law of implied warranty. As early as 1431, the common law recognized an implied warranty of merchantability in the sale of food. As one medieval lawyer observed, “it is ordained that none [shall] sell corrupt victuals.” (Y.B. 9 Hen. VI, f. 53b (1431), quoted in Titus, Restatement (Second) of Torts: Section 402A and the Uniform Commercial Code (1969) 22 Stan.L.Rev. 713, 735 (hereafter Titus).) A special warranty rule applicable in food cases evolved in the early American courts, as well. (Id. at pp. 736-738.)
The principle underlying the warranty rule was essentially twofold; first, it was recognized that the seller is generally in a better position than the buyer to assure that food is fit for consumption; furthermore, as between an unsuspecting purchaser and a potentially unaware seller, public health and consumer confidence mandate that the innocent consumer be made whole. As one New York court observed at the turn of the century: “This rule is based upon the high regard which the law has for human life. The consequences to the consumer resulting from the consumption of articles of food *646 sold for immediate use may be so disastrous that an obligation is placed upon the seller to see to it, at his peril, that the articles sold are fit for the purpose for which they are intended. The rule is an onerous one, but public policy, as well as the public health, demand such obligation should be imposed. ... If there be any poison in the article sold, or if its condition render it unfit for consumption, and the consumer be thereby made ill, some one must, of necessity suffer, and it ought not to be the one who has had no opportunity of determining the condition of the article . . . .” (Race v. Krum (1918) 222 N.Y. 410, 415-416 [ 118 N.E. 853, 854 ], quoted in Titus, supra, 22 Stan.L.Rev. at pp. 737-738; see generally Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960) 69 Yale L.J. 1099 [detailing the gradual extension of the implied warranty from food to nonfood products]; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [ 27 Cal.Rptr. 697 , 377 P.2d 897 , 13 A.L.R.3d 1049 ].)
By the mid-1930’s, California had embraced these principles, as well. In Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683 [ 59 P.2d 142 ] and Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674 [ 59 P.2d 144 ] (hereafter Mix) our court overruled several prior decisions to hold that the furnishing of food constituted a “sale” within the meaning of the California Sales Act; thus, Goetten held that a restaurant patron could recover in warranty for injuries sustained from chewing on a piece of glass in a dish of chow mein. Mix , handed down the same day as Goetten , underscored the principle that implied warranty attaches to the sale of food, but unfortunately placed an additional gloss on the warranty rule. It was the Mix court’s view that the implied warranty did not extend to injuries caused by substances “natural” to the food served, such as a chicken bone in a chicken pie; it covered only damage caused by “foreign” substances such as glass, stones, wires or nails. (6 Cal.2d at p. 681.)
The so-called “foreign-natural” distinction announced in Mix was soon challenged, however, by a competing standard known as the “reasonable expectation” test. (See Wood v. Waldorf System (1951) 79 R.I. 1 [ 83 A.2d 90 ].) Under the latter, the pivotal question is not whether the injury-producing substance is “natural” or “foreign” to the food served, but rather whether the consumer may reasonably expect to find such a substance in the particular type of dish or food. “Naturalness” may be relevant to the determination, but only insofar as it bears on the average consumer’s reasonable expectations. (See 3 Anderson, Uniform Commercial Code (3d ed. 1983) §§ 2-314:184 2-314:185, pp. 271-273; 3 Williston on Sales (4th ed. 1974) § 18-10, pp. 100-105.)
The majority opinion rests squarely on the foreign-natural distinction announced over 50 years ago in Mix', accordingly, its merit must be judged *647 against the continued viability of that doctrine. In this regard, the majority argue that the Mix rule or a variant thereof “has been followed for over 30 years” by a number of jurisdictions and continues to represent the developing “trend” in the courts. (Maj. opn., ante, at pp. 624, 630.) What trend? Six paltry decisions are cited as proof of its ongoing vitality. Three additional cases from the State of Louisiana are offered to demonstrate how one “enlightened” jurisdiction has modified the Mix rule so that a consumer injured by a “natural” substance may attempt to prove that the seller was negligent, although the consumer may not claim that the food was unfit for consumption under the usual implied warranty rules unless the substance may be characterized as “foreign.” With this, the majority find the Louisiana variant of the Mix rule to be persuasive and adopt it as the law in California. 2
The majority are mistaken. A survey of the leading cases and commentaries reveals that the vast majority have rejected the “foreign-natural” rule in favor of the reasonable expectation test. As one federal court (applying Maryland law) recently observed, the “ ‘reasonable expectation’ test has largely displaced the natural-foreign test adverted to by defendants.” (Yong Cha Hong v. Marriott Corp. (D.Md. 1987) 656 F.Supp. 445, 448 ; see also Phillips v. Town of West Springfield (1989) 405 Mass. 411 [ 540 N.E.2d 1331, 1332 ] [“The reasonable expectations test has been generally recognized as preferable to the foreign substance-natural substance test.”].) A recent law review note on the subject also concludes: “The majority of jurisdictions that have addressed cases concerning deleterious, naturally occurring substances in food are moving toward adoption of the reasonable expectation test.” (Note, Breach of Implied Warranty: Has the Foreign/Natural Test Lost Its Bite? (1990) 20 Mem. St. U.L. Rev. 377, 407 (hereafter Note).) 3
Turning first to the commentators, it is no exaggeration to say that the doctrine has met with almost universal criticism, if not outright ridicule. In his book on the subject, Professor Dickerson states: “Insofar as these cases rest on the notion of ‘naturalness’ in the sense that nothing that is an inherent *648 part of the raw product itself can be a legal defect, they do not hold water . . . [f] The better test of what is legally defective appears to be what consumers customarily expect and guard against.” (Dickerson, Products Liability and the Food Consumer (1951) § 4.2-4.3, p. 185.) Anderson, in his multivolume work on the Uniform Commercial Code, also aligns himself on the side of the reasonable expectation test, pronouncing it the “preferable” rule and concluding: “The reasonable expectation test, rather than the foreign-natural test, should be applied to determine whether there was a breach of warranty . . . .” (3 Anderson, Uniform Commercial Code, supra, § 2-314:185, at p. 272.)
More pointed criticism has been levelled, as well. One author, noting the prevalence of processed foods on the market which make it difficult if not impossible for the reasonable consumer to inspect, states: “In an era of consumerism, the foreign-natural standard is an anachronism. It flatly and unjustifiably protects food processors and sellers from liability even when the technology may be readily available to remove injurious natural objects from foods. The consumer expectations test, on the other hand, imposes no greater burden upon processors or sellers than to guarantee that their food products meet the standards of safety that consumers have customarily and reasonably come to expect from the food industry.” (Janes, Products Liability—The Test of Consumer Expectation for “Natural” Defects in Food Products (1976) 37 Ohio St. L.J. 634 , 652.)
Another scholar has written: “The [foreign-natural] distinction makes bad sense. It makes even worse law. If the court wen taken seriously, one is confronted by the ludicrous spectacle of the chef in the local hashhouse carefully culling the chicken chow mein to remove any ground glass, tacks or other debris he might encounter while disdainfully ignoring the serrated chicken bones therein on the assumption that the Mix decision immunizes him from liability.” (Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties (1961) 8 UCLA L.Rev. 281, 304.)
The most recent article on the subject concludes that, in those few jurisdictions which still “cling to the antiquated and confusing foreign/ natural test,” the result is “inequitable decisions” and the denial of recovery “to plaintiffs injured by objects that no ordinary consumer would expect to find in the finished food dish. This failure also undermines the reasoning behind the adoption of the breach of implied warranty provisions of the Uniform Commercial Code that provide relief for injured consumers without requiring a showing of negligence on the part of the manufacturer or supplier.” (Note, supra, 20 Mem. St. U.L. Rev. at p. 407.)
Turning from the commentators to the cases, one finds the response to the foreign-natural doctrine equally if not more critical. The position of the *649 courts which reject the doctrine is well stated in Zabner v. Howard Johnson’s, Incorporated (Fla.Dist.Ct.App. 1967) 201 So.2d 824 , 826: “The ‘foreign-natural’ test as applied as a matter of law . . . does not recommend itself to us as being logical or desirable. [j[] The reasoning applied in this test is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. . . . Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served. . . . HQ . . . H] The test should be what is ‘reasonably expected’ by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.”
These criticisms are amplified in the frequently cited case of O’Dell v. DeJean’s Packing Co., Inc. (Okla.Ct.App. 1978) 585 P.2d 399 , 402: “Oftentimes, extensive damage and even death is caused by a substance in the prepared food that is ‘natural’ to the food item in its original state. Thus, there seems little logic in the ‘foreign-natural’ test. It appears the weakness in this test leads to ridiculous results. Where is the line drawn? For example, chicken bones are natural to chicken, but so are beaks, claws, and intestines. One therefore wonders what the courts in the jurisdictions following the ‘foreign-natural’ test would decide in the chicken soup case if it were a chicken beak or claw that caused the damage rather than a chicken bone, because all three parts are ‘natural’ to the chicken. . . ,” 4
“If one purchases a whole fish to bake surely he or she could ‘reasonably expect’ to find bones in it. . . . [SI] If one ‘reasonably expects to find an item in his or her food then he guards against being injured by watching for that item. When one eats a hamburger he does not nibble his way along hunting for bones because he is not ‘reasonably expecting’ one in the food. Likewise, when one eats processed oysters, normally one does not gingerly graze through each oyster hunting for a pearl because he is not ‘reasonably expecting’ one in the food. It seems logical some consideration should be given to the manner in which the food is normally eaten in determining if a person can be said to ‘reasonably expect’ an item in processed food.” (O’Dell v. DeJean’s Packing Co., Inc., supra, 585 P.2d at p. 402 .)
*650 Criticisms similar to those quoted above appear in cases far too numerous to quote at length. Recently, the foreign-natural test has been dismissed as “artificial” (Ex Parte Morrison’s Cafeteria of Montgomery, Inc. (Ala. 1983) 431 So.2d 975, 978 ) and “unsound from the outset” (Jackson v. Nestle-Beich, Inc. (1991) 212 Ill.App.3d 296 [ 569 N.E.2d 1119, 1123 ]). 5 In addition to those previously noted, cases that have rejected the foreign-natural distinction in favor of the reasonable expectation standard include: Carl v. Dixie Co. (Ala. 1985) 467 So.2d 960 ; Hochberg v. O’Donnell’s Restaurant, Inc. (D.C. 1971) 272 A.2d 846 ; Johnson v. C.F.M., Inc. (D.Kan. 1989) 726 F.Supp. 1228 ; Yong Cha Hong v. Mariott Corp., supra, 656 F. Supp. 445 ; Stark v. Chock Full O’Nuts (1974) 77 Misc.2d 553 [ 356 N.Y.S.2d 403 ]; Williams v. Braum Ice Cream Stores, Inc. (Okla.Ct.App. 1974) 534 P.2d 700 ; Bonenberger v. Pittsburgh Mercantile Co. (1942) 345 Pa. 559 [ 28 A.2d 913 , 143 A.L.R. 1417 ]; Wood v. Waldorf Systems, Inc., supra, 83 A.2d 90 ; Allen v. Grafton (1960) 170 Ohio St. 249 [ 164 N.E.2d 167 ]; Thompson v. Lawson Milk Co. (1976) 48 Ohio App.2d 143 [ 356 N.E.2d 309 ]; Jim Dandy Fast Foods, Inc. v. Carpenter (Tex.Civ.App. 1976) 535 S.W.2d 786 ; Matthews v. Campbell Soup Co., supra, 380 F.Supp. 1061 ; Jeffries v. Clark’s Restaurant Enterprises, Inc. (1978) 20 Wn.App. 428 [ 580 P.2d 1103 ]; Betehia v. Cape Cod Corp. (1960) 10 Wis.2d 323 [ 103 N.W.2d 64 ]. 6
And what of the five jurisdictions cited by the majority as proof of the rule’s continuing vitality? (Maj. opn., ante, at pp. 624-625.) The majority do not reveal that one, Illinois, has recently declined to follow its own 50-year-old precedent in Goodwin v. Country Club of Peoria (1944) 323 Ill.App. 1 *651 [ 54 N.E.2d 612 ], opting instead for the reasonable expectation test. (See Jackson v. Nestle-Beich, Inc., supra, 569 N.E.2d 1119, 1124 [“After reviewing the foregoing, we conclude that the foreign-natural doctrine originally set forth in Mix and adapted by the second district in Goodwin should not be followed.”].) Nor does the majority appreciate the fact that another, North Carolina, recently declined to read Adams v. Great Atlantic & Pacific Tea Co. (1960) 251 N.C. 565 [ 112 S.E.2d 92 ], as adopting a “true” foreign-natural test, construing it instead as a reasonable expectation case. (Goodman v. Wenco Management (1990) 100 N.C.App. 108 [ 394 S.E.2d 832, 835 ] [“the Adams test leads to approximately the same result as the ‘reasonable expectation’ test”].)
As to the remaining cases on which the majority rely, Brown v. Nebiker (1941) 229 Iowa 1223 [ 296 N.W. 366 ], is not a true foreign-natural decision; although it cites Mix , its holding is based on the conclusion that one who eats a pork chop “ought to anticipate and be on his guard against the presence of bones, which he knows will be there.” (Id. at p. 371.) Similar reasoning underlies the Massachusetts decision in Webster v. Blue Ship Tea Room, Inc. (1964) 347 Mass. 421 [ 198 N.E.2d 309 ] (famous for the wonderful fish chowder recipe contained therein). Although the case is often cited to support the foreign-natural rule, in fact its reasoning is simply that fish bones in New England fish chowder ought to be “anticipated” by the reasonable consumer. (Id. at p. 312.) “It is not too much to say that a person sitting down to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.” (Ibid.) Indeed, the Massachusetts high court has recently joined the majority of jurisdictions in rejecting the foreign-natural doctrine, observing of its earlier decision: “This court’s discussion in its Webster opinion focused on the reasonable expectations of a consumer of fish chowder and concluded, as a matter of law, that bones in fish chowder should reasonably be expected .... In our view, the reasonable expectations test is the appropriate one to apply in determining liability for breach of warranty of merchantability . . . .” (Phillips v. Town of West Springfield, supra, 540 N.E.2d at p. 1333 .)
Thus apart from the States of Georgia (where Norris v. Pig’n Whistle Sandwich Shop (1949) 79 Ga.App. 369 [ 53 S.E.2d 718 ], appears to still be good law) and Louisiana (which is unique among the 50 states for the absence of a common law tradition) the foreign-natural rule lacks substantial support in any jurisdiction in the United States. Indeed, as the foregoing discussion demonstrates, the doctrine has been so thoroughly savaged by courts and commentators alike that its significance today is largely historical: a quaint relic from a distant past. Such is the state of the legal and moral fossil into which the majority seek to breathe life.
*652 Finding cold comfort in the case law and commentaries, the majority next attempt to bolster their position through resort to legislative history. The effort is equally unavailing. In support of its holding, the majority state that the Legislature “was aware of” the Mix rule when it repealed former Civil Code section 1735 and adopted the implied warranty sections of the Uniform Commercial Code. (Cal. U. Com. Code, §§ 2314, 2315.) The California code comment to section 2314 does make reference to Mix , however, the comment merely notes that the statute’s definition of a “sale” as including the serving of food and drink “is in accord with prior California case law. Klein v. Duchess Sandwich Co., 14 Cal.2d 272 . . . and Mix v. Ingersoll Candy Co., 6 Cal.2d 674 .. . .” (See 23A West’s Ann. Cal. U. Com. Code (1964 ed.) § 2314, p. 265.) As noted earlier, this was a matter of some controversy preceding the adoption of the Uniform Commercial Code. (See 3 Williston on Sales, supra, § 18-10, at p. 100.) Mix overruled prior case law (especially Loucks v. Morley (1919) 39 Cal.App. 570 [ 179 P. 529 ]) to hold that the implied warranty applied to the furnishing of food. (See Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties, supra, 8 UCLA L.Rev. at pp. 293, 303-304 [“the California Supreme Court did not delay overlong in reversing Loucks and adopting the precept, now codified by the UCC, that restaurant transactions are sales.”].) The majority’s implication that the California Uniform Commercial Code adopted the foreign-natural rule finds no support in any official commentary or other authority of which I am aware. 7
Conclusion
Oliver Wendell Holmes, Jr., observed that “precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion . . . .” (Holmes, The Common Law (Howe edit. 1968) p. 31.) In perpetuating an antiquated and universally rejected precedent (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d 674 ), and in ignoring a vast body of contrary precedent, the majority fulfill Holmes’s dual prophesy. Unfortunately the “confusion” will be the burden of the lower courts and the bar as they attempt to understand and apply an outdated legal doctrine. The “failure” lies exclusively with us, in neglecting our fundamental responsibility to marshall all the applicable precedents, to extract the basic principle, and then, as Cardozo so insightfully explained, to “determine the path or direction along *653 which the principle is to move, if it is not to wither and die.” (The Nature of the Judicial Process (1921) pp. 28-31.)
The majority respond by insisting that a cow’s eye is not “natural to the preparation” of a hamburger. (Maj. opn., ante, at p. 630, fn. 5, italics omitted.) Yet the majority fail to explain anywhere in their opinion the meaning of that phrase. Is a chicken beak “natural to the preparation” of a chicken enchilada because the preparation process begins with a whole chicken? It is the absence of any principled articulation of what, if anything, distinguishes these two examples that demonstrates the irrationality of the foreign-natural doctrine and illustrates the difficulty courts will face in attempting to apply this artificial distinction.
In permitting a claim of negligence for injuries resulting from “natural” substances, the decision represents a small advance on the Mix doctrine. Nevertheless, as the majority’s allusion to the doctrine of res ipsa loquitur impliedly suggests (maj. opn., ante, at p. 633, fn. 9), it is often difficult, if not impossible, to prove actual negligence on the part of the manufacturer or supplier in food cases where the deleterious substance is indigenous to the product served. (See Prosser, The Assault Upon the Citadel, supra, 69 Yale L.J. 1099 .) The virtue of a warranty action is that proof of actual negligence is not required, though it must still be established that the injury-producing substance was not within the reasonable expectations of the average consumer.
Although as late as 1974 one may still encounter allusions to the foreign-natural test as the “majority” rule (see Matthews v. Campbell Soup Company (S.D.Tex. 1974) 380 F.Supp. 1061 ), nearly all of the early decisions that might at one time have supported such a statement have since been discarded in their respective jurisdictions. (See, post, at pp. 650-651.)
The question raised by an incredulous court in O’Dell is specifically addressed by the majority here, who are apparently satisfied that chicken beaks, claws and intestines, being “natural” to the chicken, may reasonably be expected by the consumer and thus may not support a claim for breach of implied warranty. (Maj. opn., ante, p. 630, fn. 5.)
The majority imply that the court in Morrison’s Cafeteria, supra, 431 So.2d 979 , relied on the foreign-natural doctrine in holding that the plaintiff could not state a claim for breach of implied warranty. This is incorrect. The Alabama court clearly did not reject the plaintiff’s claim, as the majority assert, “because the substance was natural to the food served.” (Maj. opn., ante, at p. 631.) On the contrary, the Alabama court flatly rejected the foreign-natural doctrine: “The undesirability of the foreign substance test lies in the artificial application at the initial stage of processing the food without consideration of the expectations of the consumer in the final product served . . . . H] The ‘reasonable expectation’ test ... appears to us a more logical approach.” (431 So.2d at p. 978.) The Alabama court did take into account the fact that the substance in question (a one-centimeter bone in a piece of fish) was natural to the food served, but only as evidence that a reasonable consumer should have expected to find the substance. (Id. at p. 979.)
The majority cite several of the foregoing decisions (Carl v. Dixie Co., supra, 467 So.2d 960 ; O’Dell v. DeJean’s Packing Co., Inc., supra, 585 P.2d 399 ; Stark v. Chock Full O’ Nuts, supra, 356 N.Y.S.2d 403 ; and Zabner v. Howard Johnson’s, Incorporated, supra, 201 So.2d 824 ) to suggest that the “trend” developing in the courts is to hold that if the deleterious substance is “natural” it must have been expected “by its very nature and the food cannot be determined to be unfit for human consumption or defective.” (Maj. opn., ante, at p. 630.) This is misleading if read to suggest that any of the foregoing decisions relied on the “foreign-natural” distinction in making its determination. In fact, each of the foregoing decisions explicitly rejected the Mix doctrine as unduly artificial. The “naturalness” of the injury-producing substance was considered only in determining whether, under the circumstances, a consumer would reasonably have expected to find the substance in the particular food served.
Because the overwhelming mass of authority cited above addresses the issue in the context of the seller’s liability for breach of implied warranty rather than strict products liability, and because I find that the briefing in this case does not fully develop the products liability issue, I confine my remarks to defendant’s liability for breach of warranty.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530087. Public record. Not legal advice.