Mexicali Rose v. Superior Court

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…