Comparative Fault In Food Vendor Negligence

Tennessee courts have long acknowledged the importance of food safety.  See Bissinger v. New Country Buffet, No. M2011-02183-COA-R9CV, 2014 WL 2568413, at *15 (Tenn. Ct. App. June 6, 2014), appeal denied (Oct. 20, 2014).  Vendors producing food intended for consumption are held to the highest standard of care.  Jones v. Mercer Pie Co., 214 S.W.2d 46, 49 (1948).  In Tennessee, when a consumer seeks to hold a food vendor accountable for injuries sustained as a result of the consumption of defective foods, she will usually claim the food vendor was negligent in the preparation of the product.  For a negligence claim to stick, the consumer must show duty, breach, cause-in-fact, loss or injury, and proximate cause. In other words, the consumer must show the food vendor owed a duty of care to the consumer, the vendor’s conduct fell below that standard of care amounting to a breach, and that there was something wrong with the food when it left the vendor’s hands, which, when consumed, caused injury.  The failure of the consumer to show any one of those factors is detrimental to the negligence claim.

Even if a consumer is able to show all of the factors of a negligence claim, the vendor may utilize an affirmative defense in order to negate liability. One such defense would be for the vendor to assert comparative fault against the consumer.  Under comparative fault, the plaintiff’s fault must be less than the defendants’ combined fault.  McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).  In Brown v. Logan’s Roadhouse, for example, a female plaintiff sued Logan’s Roadhouse for negligence after she bit into and chewed a piece of meatloaf containing a metal fragment, purportedly a metal staple. Logan’s Roadhouse denied any acts of negligence, and asserted fault against the plaintiff for her continuing to chew the meatloaf after discovery of the staple. This argument had some “effect” on the jury because it found the plaintiff to be 40% negligent in causing her own injuries. The general jury award was $27,500, and the court subsequently entered judgment for the plaintiff, less comparative fault, in the sum of $16,500.

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