## Facts

- Flora Ash, a paying customer at a restaurant operated by Childs Dining Hall Co., was served blueberry pie made on the premises by the restaurant’s employees.
- While eating the pie, Ash felt a sharp object in her throat and identified it as a small, thin, flat-headed black tack.
- The blueberries used for the pie were purchased in ordinary wooden quart berry baskets fastened with small flat-headed tacks.
- The restaurant offered evidence that it exercised a high degree of care in washing and preparing the blueberries and making the pies.
- Ash sued only in tort for negligence; no warranty or other contract-based theory was pursued.

## Issues

1. Whether the presence of a tack in blueberry pie served to a restaurant customer, without more, is sufficient evidence for a jury to find the restaurant negligent.
2. Whether res ipsa loquitur permits an inference of negligence from the occurrence alone under these circumstances.

## Decision

- The Supreme Judicial Court sustained the defendant’s exceptions and set aside the plaintiff’s verdict.
- The court held the evidence was legally insufficient to support a finding of negligence based solely on the tack’s presence in the pie.
- The court held res ipsa loquitur did not apply because the occurrence did not, by common experience, indicate negligence and the tack could have been introduced through the berry baskets despite due care.

## Legal Principles

- A restaurant keeper must use due care to furnish wholesome food fit to eat, but is not an insurer against all harm from food served.
- In a negligence action, the plaintiff bears the burden to prove the defendant’s breach of due care was the proximate cause of the injury.
- A foreign object in prepared food is not, by itself, proof of negligence when the circumstances show a plausible non-negligent source and no specific negligent act or omission is proved.
- Res ipsa loquitur applies only when the event is of a kind that ordinarily does not occur without negligence and the instrumentality is sufficiently within the defendant’s control; it does not apply where the object could have been introduced through external packaging and might escape detection despite due care.

## Conclusion

Because Ash proceeded solely on negligence and offered no evidence of specific carelessness beyond the tack’s presence in the pie, and because the circumstances permitted a non-negligent explanation, the court ruled the verdict could not stand and rejected res ipsa loquitur as a substitute for proof of fault.


Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N.E. 396 (Mass. 1918)