## Facts

- Priscilla D. Webster ate lunch at Blue Ship Tea Room, Inc., a Boston restaurant, with her sister and aunt.
- After being told clam chowder was unavailable, she ordered a cup of fish chowder described as milky and containing chunks of haddock and potatoes.
- While eating several spoonfuls, she felt an object lodge in her throat and could not swallow or clear it.
- A fish bone was found lodged in her esophagus; she required medical treatment including esophagoscopies and suffered injury.
- Webster sued for personal injuries, alleging breach of the implied warranty that restaurant food is fit for consumption under the merchantability standard.
- An auditor (nonfinal findings) and then a jury in Superior Court found for Webster.
- The restaurant sought appellate review by exceptions, including denial of a directed verdict and denial of entry of judgment under leave reserved.

## Issues

1. Whether the presence of a fish bone in fish chowder renders the chowder unmerchantable and unfit for ordinary consumption, breaching the implied warranty of merchantability under U.C.C. § 2-314 as adopted in Massachusetts.
2. Whether, on these facts, the defendant was entitled to judgment as a matter of law despite the plaintiff’s verdict.

## Decision

- The Supreme Judicial Court of Massachusetts sustained the defendant’s exceptions.
- The court held that a fish bone in fish chowder did not, as a matter of law, breach the implied warranty of merchantability.
- The plaintiff’s verdict was set aside and judgment entered for the restaurant.

## Legal Principles

- Under U.C.C. § 2-314, food sold for consumption carries an implied warranty of merchantability, measured by fitness for the ordinary purposes of the goods.
- Merchantability for prepared food is evaluated in light of the nature of the food and the reasonable expectations of ordinary consumers.
- A naturally occurring constituent that consumers should reasonably anticipate in the dish (e.g., a fish bone in fish chowder) does not make the food unwholesome or unfit for ordinary consumption.
- The implied warranty does not require removal of inherent, expected risks where doing so would materially change the customary character of the dish.
- Materials that are truly foreign to the food are treated differently from natural constituents in assessing warranty breach.

## Conclusion

Because fish chowder is commonly understood to carry a possibility of fish bones, the court concluded that the chowder remained fit for its ordinary purpose and the restaurant did not breach the implied warranty of merchantability.


Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421 (1964)