## Facts

- A restaurant patron ordered and was served a meal that included a half-dozen fried oysters and paid for the meal.
- The patron alleged that one oyster contained an oyster shell fragment approximately 3 × 2 centimeters.
- The patron alleged he did not know of the shell, swallowed it, and suffered a punctured small intestine requiring abdominal surgery.
- The patron sued the restaurant operator asserting (1) breach of an implied warranty that the food was pure, safe, and reasonably fit for consumption and (2) negligence, including negligence per se based on alleged violation of Ohio criminal pure-food statutes prohibiting sale of “adulterated” food.
- The trial court dismissed the petition for failure to state a claim; the court of appeals reversed.

## Issues

1. Whether a restaurant’s implied warranty that food is “reasonably fit to eat” is breached when one of six fried oysters contains a sizable oyster shell fragment.
2. Whether that shell fragment renders the serving “adulterated” under Ohio’s pure-food statute so that selling it constitutes negligence per se.
3. Whether, absent a statutory violation, a restaurant may be held negligent for serving food that is otherwise reasonably fit to eat but contains a natural substance associated with the food.

## Decision

- The Ohio Supreme Court reversed the court of appeals and reinstated dismissal of the petition.
- Serving a meal in a restaurant constitutes a “sale,” and the restaurant impliedly warrants that the food served is reasonably fit to eat.
- Violation of criminal statutes prohibiting the sale of adulterated food constitutes negligence per se, but the pleaded facts did not show “adulterated” food.
- The presence of an oyster shell fragment in one of six fried oysters did not justify a legal conclusion that the food was adulterated or not reasonably fit to eat.
- Because the food was deemed reasonably fit to eat on the pleaded facts, the implied-warranty and negligence theories failed as a matter of law.

## Legal Principles

- A restaurant transaction is a sale of the food served, carrying an implied warranty that the food is reasonably fit for consumption under Ohio sales law.
- A statutory violation of criminal provisions prohibiting sale of adulterated food is negligence per se, but only if the food qualifies as “adulterated” within the statute.
- If food is reasonably fit to eat, a seller cannot, apart from violation of a statute, be held negligent for selling it as food.
- Natural substances commonly associated with the food (e.g., shells in oysters) may not render the food adulterated or unfit where a consumer could reasonably anticipate and guard against the substance.

## Conclusion

The court held that a single oyster shell fragment in one of six fried oysters, as pleaded, did not make the serving “adulterated” under Ohio’s pure-food statute and did not breach the restaurant’s implied warranty of reasonable fitness; without a statutory violation, the negligence claim also failed, so dismissal was proper.


Allen v. Grafton, 170 Ohio St. 249, 164 N.E.2d 167 (Ohio 1960)