Legal News

Rep. Kucinich's Olive Injury Suit May Not Be Legal Pits

By Matthew Heller, Editor

Rep. Dennis Kucinich is getting kicked in the teeth over a dental injury lawsuit involving an olive pit but a vodka martini precedent suggests the House cafeteria may be liable for serving him a defective sandwich wrap.

The Ohio Democrat allegedly cracked a tooth in April 2008 when he bit down on a ?dangerous substance? ? namely, an unpitted olive ? in the sandwich. ?Said sandwich wrap was unwholesome and unfit for human consumption,? he says in a complaint filed earlier this month in the District of Columbia,

in that it was represented to contain pitted olives, yet unknown to plaintiff contained an unpitted olive or olives which plaintiff did not reasonably expect to be present in the food prepared for him, and could not visually detect prior to consumption.

The defendants include Restaurant Associates, the operator of the Longworth House Office Building cafeteria that served Kucinich the sandwich, and the suppliers of the olive. Kucinich is seeking $150,000 in damages for ?serious and permanent? dental injuries and ?significant pain, suffering and loss of enjoyment.

Rep. Dennis Kucinich

Commentators are having a field day pouring vitriol on the suit. ?An olive pit is forseeable [sic] ('natural' as we lawyers are wont to say) and not a foreign object like a piece of glass or hunk of metal in a sandwich,? one attorney said on Overlawyered.com. ?DK?s best chance is that the olive pit is probably half as large as his head.?

But in 1971, the D.C. Court of Appeals recognized the ?implied warranty? claim of a man who, in the course of drinking a vodka martini, bit down on an olive pit, breaking his tooth. Philip Hochberg had extracted the olive from the drink with his fingers, seen a hole in the end of the olive, and put it in his mouth.

The restaurant that served the offending martini argued it was not liable under the ?foreign-natural? standard for food injury claims since the olive pit was ?naturally a part of or associated with the type of food in which it [was] found.? The appeals court, however, relied on the ?reasonable expectation? test in finding that the trial judge should have allowed the case to go to a jury verdict.

?Because a substance is natural to a product in one stage of preparation does not mean necessarily that it will be reasonably anticipated by the consumer in the final product served,? it said in Hochberg v. O'Donnell's Restaurant, 272 A.2d 846.

Hochberg admitted his case would have been more tenuous if he had not seen the hole in the olive. ?This narrows the problem to whether on these facts he was reasonably justified in expecting there was no pit in the olive and could chew without care,? the court concluded. ?What is to be reasonably expected by the consumer is a jury question in most cases.?

Kucinich is alleging the cafeteria breached its implied warranty that the sandwich was fit for consumption. And he could certainly argue that he was reasonably justified in expecting the olives in his sandwich were pitted and he could eat them without having to check for pits.

The Iowa Supreme Court adopted a similar logic in a case against olive suppliers, finding that

in the case of processed foods, consumers may develop reasonable expectations that certain components of food products in their natural state that serve to impede human consumption will be removed. Specifically, we believe that the purchaser of pimento-stuffed olives may reasonably anticipate that the olive pits have been removed. Kolarik v. Cory Intern. Corp., 721 N.W.2d 159 (2006).

A video of Kucinich may complicate his case, though. It shows him speaking normally on the House floor five days after his alleged dental disaster.

By Matthew Heller
On Point

Full post as published by On Point News on January 28, 2011 (boomark / email).