QUESTION:

I broke my tooth due to the object in a restaurant food. The restaurant is already paying for the dentist but I will need to stay in town to complete the repair. The event has ruined the weekend and the upcoming week. Do I have a case?

ANSWER:

The restaurant may be liable for damages provided that there exists negligence on their part in preparing your food. However, the burden of proving the non-existence of negligence may be shifted on the defendant in an adulterated food case if the plaintiff can prove that the essential elements of res ipsa loquitur are present, in that the injury-producing instrumentality was in defendant’s exclusive control and injury would not have occurred had due care been exercised. ¶ 2:1751ff.) [2:1382]. On the other hand if, after balancing the probabilities, it appears that injury would normally occur despite the exercise of due care, occurrence of the event does not justify an inference of negligence and, thus, res ipsa loquitur is inapplicable; i.e., under these circumstances, plaintiff must produce evidence of some specific negligent act or omission and that there is a sufficient causal connection between defendant’s conduct and plaintiff’s injury. [Zentz v.Coca Cola Bottling Co., supra, 39 C2d at 442, 247 P2d at 347; In the case of Ford v. Miller Meat Co.(1994) 28 CA4th 1196, 1203, 33 CR2d 899, 903]—P who suffered tooth injury from 1/8th inch bone fragment in ground meat failed.

Absent the elements of res ipso loquitor, it would be important to establish that such negligence evidenced by the object on your food was the cause of your broken tooth. Causation is a question of reasonable probability; “legal cause” need not be proved with certainty, but mere possibility is insufficient to establish a prima facie case. Thus, the issue is whether it is more likely than not that plaintiff’s injury was a result of defendant’s act or omission. [Ortega v. Kmart Corp. (2001) 26 C4th 1200, 1205, 114 CR2d 470, 475; see Miranda v. BomelConst. Co., Inc. (2010) 187 CA4th 1326, 1336, 115 CR3d 538, 545–546) [2:2405]. It would be best to seek personal assistance from a lawyer in order to guide you with the proper procedure in filing a personal injury claim.

The restaurant may be liable for damages provided that there exists negligence on their part in preparing your food. However, the burden of proving the non-existence of negligence may be shifted on the defendant in an adulterated food case if the plaintiff can prove that the essential elements of res ipsa loquitur are present, in that the injury-producing instrumentality was in defendant’s exclusive control and injury would not have occurred had due care been exercised. ¶ 2:1751ff.) [2:1382]. On the other hand if, after balancing the probabilities, it appears that injury would normally occur despite the exercise of due care, occurrence of the event does not justify an inference of negligence and, thus, res ipsa loquitur is inapplicable; i.e., under these circumstances, plaintiff must produce evidence of some specific negligent act or omission and that there is a sufficient causal connection between defendant’s conduct and plaintiff’s injury. [Zentz v.Coca Cola Bottling Co., supra, 39 C2d at 442, 247 P2d at 347; In the case of Ford v. Miller Meat Co.(1994) 28 CA4th 1196, 1203, 33 CR2d 899, 903]—P who suffered tooth injury from 1/8thinch bone fragment in ground meat failed.

Absent the elements of res ipso loquitor, it would be important to establish that such negligence evidenced by the object on your food was the cause of your broken tooth. Causation is a question of reasonable probability; “legal cause” need not be proved with certainty, but mere possibility is insufficient to establish a prima facie case. Thus, the issue is whether it is more likely than not that plaintiff’s injury was a result of defendant’s act or omission. [Ortega v. Kmart Corp. (2001) 26 C4th 1200, 1205, 114 CR2d 470, 475; see Miranda v. BomelConst. Co., Inc. (2010) 187 CA4th 1326, 1336, 115 CR3d 538, 545–546) [2:2405]. It would be best to seek personal assistance from a lawyer in order to guide you with the proper procedure in filing a personal injury claim.