How Sweet It’s Not: Assisted Living Facility Liable For Injury From Cookie?

As a Boston-Dedham personal injury attorney, I’ve handled a great deal of personal injuries due to many forces, including cases of food poisoning. In fact, most people would be surprised to learn of the number of injuries that can result from improperly or negligently prepared food. In this case, the alleged culprit was somethign we all love: A chocolate chip cookie.

The plaintiff in this case alleged that she sustained injuries to her mouth and teeth from a hard object when she bit into a chocolate chip cookie while visiting her mother at an assisted living facility, called Sunrise. Importantly in this case, the cookie had been given free to the plaintiff by the facility. She did not purchase it. Not a big deal, you say? It is a big deal in the eyes of the law, especially when dealing with Massachusetts negligence claims.

That’s because whehter or not the defendant facility (Sunrise) could have been found liable for the plaintiff’s injuries here, would depend upon whether or not the facility could be shown to have breached something in Massachusetts law called the “Warranty of Merchantability.” This is an implied warranty (which means it doesn’t need to be stated in writing,) dealing with Massachusetts consumer law. Boiling it down to a brief explanation, it states that a particular product that a merchant sells, must be suitable and safe for the purpose it was produced. The legal question in this case? Did the assisted living facility, in providing this free food item to the plaintiff, qualify legally as a “merchant”?

A District Court trial judge said yes, and after appeal, a judge in the Appellate Division of the District Court, agreed, finding that there was evidence in this case to support the trial judge’s findings that the ‘pits’ that caused plaintiff’s injury were foreign substances not naturally found in a chocolate chip cookie, and that the plaintiff should not have reasonably expected them in such a cookie.

What were keys to the court’s decision was that Sunrise had the necessary expertise to provide desserts in both its facility, and more importantly, the cookies were not purchased ready to eat. Rather, Sunrise had to bake them, and not much expertise or skill was required to do that. Further, there was no evidence that the facility’s providing such cookies and similar food items was an isolated or unusual event. Equally as important, the court found that Sunrise received a benefit in providing the free cookies (something that is technically referred to as “legal consideration”) because family members of faciliity residents were “made to feel that their loved ones are in a pleasant and caring facility, that they should remain there, and, of course, that they keep paying the fees. Moreover, these cookies are, in reality, paid for in money. The fees paid by the residents, or perhaps by members of their family, allow the facility to run the Bistro and provide ‘free’ items. It is somewhat akin to ‘free’ food provided by a college at parents’ weekend; the parents do not pay for the food, but they go home and pay the tuition bill.”

Hence, if you’re in a business or commercial facililty of some kind, receive free food and suffer a food injury due to improperly or negligently prepared food, you have a legal remedy in Massachusetts.

Now hit the gym.

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