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John Bisnar
John Bisnar
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Is This The Basis For A Lawsuit?

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The following is an email I received regarding the basis of a lawsuit and my reply.

Question submitted: I prepared a packaged food product in a steel bowl. When I ate it I found glass in my mouth. I found a splinter of glass and a glass chip. I slightly cut the inside of my mouth. Is this the basis for a lawsuit?

This was my answer: Any harm done can be the basis for a lawsuit. A violation of your right to “free speech” by a governmental agency can be the basis for a lawsuit, even though you have suffered no personal injury or economic harm. An injury inflected upon you by someone’s negligence can be the basis for a lawsuit. A trespass to your property can be the basis of a lawsuit.

I am going to assume that your real questions is either, “What can I do about a piece of glass in the food product I purchased?” or “Can I sue and recover money for suffering a slight cut in my mouth from a piece of glass in a food product?”

What can you do? Write to maker of the food product and send them the glass. Let them know what happened so they can do something about it on their end. Write a press release describing your experience in order to warn others. Write a blog article and broadcast your experience on the internet. Go to the manager of the store where you purchased the food product and let them know about your experience so they can investigate the matter.

Keep this thought in mind, if you want to leave your option open to actually sue the manufacturer of the food product, you need to keep the pieces of glass. The glass is your evidence. It is crucial evidence. Without it, you turn a difficult case into a nearly impossible case. Preservation of evidence is paramount in any lawsuit.

Can I sue and recover money? Ask yourself, realistically, “what was the harm done to me?” Not what could have happened. You could have been killed in a traffic accident yesterday, fortunately you were not. You can not sue all the drivers in the world who “might have” injured you yesterday.

You experienced a slight cut in your mouth. Ask yourself, if you had been summoned for jury duty, spent three days at the court house and heard a guy tell your story of finding class in food product, experienced a slight cut in his mouth and now was asking for money for the experience, would you have an attitude about the mandatory use of your three days of time to sit on jury duty? Would you have an attitude about the costs to our judicial system for the court house, the court employees, the judges time, the time of the rest of the jurors? What would you award the man with the slight cut in his mouth?

If you had an attorney representing you in such a case, I would be wondering if this was the most meaningful cause the attorney had to take up. I would wonder why would an educated professional person be pursuing such a trivial matter and why didn’t he/she bring some sense and economic reality to the situation. I would be embarrassed for the attorney. I be appalled that someone in my profession would waste taxpayer’s resources on such a trivial matter. There are much better causes to pursue. My license says “Attorney and Counselor at Law”. This is a situation for the “Counselor” part.

Now, if I knew thousands of people who were having similar experience as you and the manufacturer of the food product was callously allowing glass to be packed into their products, I would want to represent every injured person in a class action lawsuit and teach manufacturer and the food processing industry a lesson that you can not get away with that kind of negligence. I’d make them pay. Many times a lawsuit is the most efficient way to get the attention of big business.

Bottom line from an economic point of view, the costs of time, money and emotion to pursue such a case is not justified by the expected outcome, in my opinion.

If something inside you just has to file a lawsuit about this situation, go to small claims court. There are a number of websites that provide really good guides on how to file and present a small claims case.

Keep in mind that all legal claims have time limits within which specific action must be taken to preserve your rights. Preservation of evidence is crucial to any properly processed legal claim. Further, every attorney you consult with will have a different opinion, a different approach and a different criteria for the causes they pursue. I always suggest getting a second opinion.

As I wrote this response, something dawned on me. If the person asking this question is my first year of law school Torts professor checking up on me or my first year of law school daughter testing her dad, let me give a law school exam type answer……

A food product manufacturer has a duty to present their product in a reasonably safe manner for the purpose intended. Since the product is designed to be ingested by human beings, the duty to keep foreign and/or dangerous objects out of the product is very high. A splinter of glass and/or a glass chip in the food product, I conclude, is a breach of that duty. The food product manufacturer’s duty runs to any reasonably foreseeable user of the product, who uses the product in any reasonably foreseeable manner. Thus the manufacturer has breached his duty to provide a safe product to this end user. Since the end user actually suffered injury, a slight cut, he/she is entitled to recover for the damages suffered. Technically, there is a basis for a lawsuit.

My law school, Pepperdine and my daughter’s law school, NYU, do not teach classes in common sense or basic economics. They presume their students posses such knowledge prior to starting law school.