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The Rogak Report: 29 Sep 2008 ** Food Liability - Popcorn **

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  • insurancelawyer
    POP! GOES THE WEASEL: MOVIEGOER BITES OFF MORE THAN HE CAN CHEW, AND THE TOOTH HURTS Kaplan v American Multi-Cinema, Inc. 2008 NY Slip Op 51940(U) Decided on
    Message 1 of 1 , Sep 29, 2008
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      POP! GOES THE WEASEL: MOVIEGOER BITES OFF MORE THAN HE CAN CHEW, AND THE TOOTH HURTS

      Kaplan v American Multi-Cinema, Inc.
      2008 NY Slip Op 51940(U)
      Decided on September 19, 2008
      Civil Court Of The City Of New York, New York County
      Cooper, J.
      Edited by Lawrence N. Rogak



      This small claims case involves the great gastronomic/cinematic tradition of eating popcorn at the movies. And like a surprising number of small claims cases, it presents one of those quirky issues that does not seem to have been previously addressed. The issue is whether a popcorn vendor, in this case a movie theater, can be found liable when a patron breaks a tooth on an unpopped kernel. While popcorn plays either a starring or supporting role in a number of slip and fall cases,[FN1] there are no reported decisions where the injury was allegedly sustained by its ingestion.

      On September 17, 2007, the plaintiff, Steve Kaplan, an insurance broker, attended the late show of the teen coming-of-age comedy "Superbad" at his neighborhood movie theater, the AMC-Lincoln Square Cinema. The theater is part of the nationwide chain of cinemas owned by defendant, American Multi-Cinema, Inc. As plaintiff would do whenever he went to see a movie at the Lincoln Square, he purchased a bag of freshly popped popcorn from the concession stand. When he was about a third to halfway through the bag, he bit into a hard object, which he identified as being an unpopped or partially popped kernel. Approximately 20 minutes later he left the theater because his tooth hurt and, he added, because he found "Superbad" to be a "terrible" movie.

      A little more than three weeks after his encounter with the kernel, plaintiff went to his dentist, who determined that he had indeed fractured the tooth. The dentist performed various restorative services at a cost of $1,250. A week later plaintiff reported the incident to the theater and demanded compensation.

      Mr. Kaplan testified that as a result of his experience as an insurance agent he expected that defendant would readily reimburse him for his dental bills once he made a claim. He believed that the theater would recognize that it had a duty to remove the offending kernels from the product or at least notify patrons of the dangers of encountering them. Confounding plaintiff's expectations, defendant refused to pay anything. At trial, the theater's manager explained how a special slotted popcorn scoop was used in the concession stand to eliminate as many unpopped kernels as possible. The manager testified that despite these efforts it was impossible to serve a bag of freshly popped popcorn where all the kernels were fully popped.

      New York has long afforded consumers the right to recover for dental damage incurred from objects imbedded in food. See, e.g., Stark v. Chock Full O'Nuts, 77 Misc 2d 553 (AppTerm, 1st Dept. 1974) (walnut shell in "nutted cheese" sandwich); Conklin v. Hotel Waldorf Astoria Corporation, 5 Misc 2d 496 (City Ct, NY County 1957) (piece of glass in roll); Grossman v. Hotel Astor, 166 Misc 80 (Municipal Ct, NY County 1937) (metal game tag in baked brook trout). Where at one time liability hinged on whether the object causing the injury was foreign to the food or a natural component of it (see Frier v. Laube's Old Spain, 265 AD 402 [4th Dept. 1943]), that is no longer the case. In food injury cases both under negligence and breach of implied warranty of fitness the foreign/natural test has fully given way to the reasonable expectation doctrine. Vitiello v. Captain Bill's Restaurant, 191 AD2d 429 (2nd Dept. 1993); Stark,77 Misc 2d at 554.

      A detailed analysis of New York's evolution from the foreign/natural test to the reasonable expectation doctrine can be found in Rudloff v. Wendy's Restaurant of Rochester, Inc., 12 Misc 3d 1081 (City Ct, Rochester 2006), a case arising out of a bite into a double cheeseburger. While the history of the reasonable expectation doctrine may be somewhat complicated, the test it employs is relatively straightforward: Was the injury-causing object one that the consumer would not reasonably anticipate finding in his or her food?

      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. In directing that summary judgment be entered in favor of the restaurant, the court stated that although the plaintiff had been assured that the fish had been fileted, she still had "no right to expect a perfect piece of fish." As the court pointed out, "[e]veryone ... knows that tiny bones may remain in even the best filets of fish." Vitiello, 191 AD2d at 429 (internal citations omitted).

      The question for this court then is as follows: Does what held true for the filet of fish in Vitiello apply with equal force to the bag of popcorn in this case? In other words, do moviegoers have the right to expect a perfect bag of popcorn free from unpopped kernels or should they reasonably expect to encounter them when consuming the product?

      Anyone who has ever made fresh popcorn in a microwave, in a popcorn popper, or on the stove soon learns the bitter truth that the final product is almost always marred by the presence of unpopped, partially popped or burnt kernels. Similarly, anyone enjoying popcorn at the circus, at the ballpark or at the movies learns that there is no such thing as a bag, a tub, or a bucket where all the kernels have fully popped. Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process.

      So what is the popcorn-craving moviegoer to do to guard against dental damage, short of bringing a flashlight into the theater to inspect each kernel for possible hazards? One thing may be to resist the urge to devour the bag by the handful in favor of more cautious nibbling by the piece. Cf. Rudloff, 12 Misc 3dat 1094-1095. The other thing may be simply to say no to popcorn, with its tooth-fracturing potential, and settle for something else from the concession stand, like those giant-sized boxes of Raisinets or Milk Duds. But then again, aren't Milk Duds known to pull out your fillings?

      In light of the foregoing, this court concludes that defendant cannot be held liable for plaintiff's injury inasmuch as the presence of an unpopped or partially popped kernel is something plaintiff should have reasonably anticipated. Accordingly, judgment is entered after trial in favor of the defendant dismissing the claim.

      Footnotes

      Footnote 1: See, e.g., Hanson v. Bloomingdale Brothers, 13 AD2d 1007 (2nd Dept. 1961) (popcorn on steps on which plaintiff fell); Jones v. AMC Bay Plaza Cinema 13, 2006WL2517011 (Sup Ct, Bronx County) (slip on popcorn on floor of movie theater aisle); see also Katz v. Sheepshead Bay U.S. Theater, 2006WL543717, (Sup Ct, Kings County) (fall in movie theater as plaintiff went to buy popcorn).

      Comment:  All that, and the movie sucked too?  Bummer.

      Larry Rogak

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