MEMO TO:
Alexsei Demo US
RESEARCH ID:
#4000867256c161
JURISDICTION:
State
STATE/FORUM:
California, United States of America
ANSWERED ON:
September 23, 2022
CLASSIFICATION:
Torts

Issue:

How do California courts determine causation in breach of warranty and negligence actions arising from food poisoning?

Facts:

Every year the matriarch of a large family (“Bubbie Goldie”) famously invites family and many friends to a celebratory lunch on Rosh Hashanna (the Jewish New Year). Every year she serves her famous brisket. As always, she purchased the meat from her local kosher butcher one day prior to the celebration. She stored it in her refrigerator and prepared it in accordance with her usual recipe. However, several of the guests who ate the brisket got sick and had various levels of gastrointestinal distress. Two of the older, more frail guests were hospitalized as a result, but fully recovered. Some of the guests have brought actions against the butcher, alleging that the meat was already rotten when he sold it to Bubbie Goldie.

Conclusion:

Food poisoning cases are governed by the same basic rules of causation that govern other tort cases. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009))

The unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009), Minder v. Cielito Lindo Restaurant, 136 Cal.Rptr. 915, 67 Cal.App.3d 1003 (Cal. App. 1977))

That said, reasonable inferences drawn from substantial evidence are available to show causation. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009))

It is not necessary under California law that the circumstances establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. The proper standard for proving causation is whether the defendant's conduct was a substantial factor in bringing about the injury. A "substantial factor" is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009))

Where the evidence is susceptible to a reasonable inference that death or illness resulted from the eating of contaminated food, a prima facie case of negligence or of a breach of implied warranty of the fitness of the food has been established. (Dougherty v. Lee, 74 Cal. App. 2d 132, 168 P.2d 54, 1946 Cal. App. LEXIS 1136 (Cal. App. April 23, 1946))

This rule applies whether suits for damages resulting from food poisoning are based on negligence or breach of implied warranty. (Dougherty v. Lee, 74 Cal. App. 2d 132, 168 P.2d 54, 1946 Cal. App. LEXIS 1136 (Cal. App. April 23, 1946))

The ideal factual situation in a food poisoning case would have all of these four elements: (1) simultaneous illness of a group of people who eat the same food at the same time; (2) all patients manifesting classic food poisoning symptoms; (3) prompt investigation of suspect food; and (4) microscopic examination of that food. However, the ideal situation will not always present itself to a court; thus, food poisoning cases often depend upon expert testimony. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009))

In Reese v. Smith, 9 Cal. 2d 324, 70 P.2d 933, 1937 Cal. LEXIS 399 (Cal. July 27, 1937) ("Reese"), the plaintiff purchased a pound of sausage links from the defendant butcher. She cooked two of the sausages immediately upon returning home from making the purchase and prepared them in the form of a sandwich. She became ill as she finished eating the sandwich. Within a few minutes, neighbors offered their assistance and the police department was notified. About two and a half hours after the plaintiff purchased the sausages, one of the officers went to the ice box to examine the remainder of the sausage and discovered maggots on the open end of the sausage. The officer then took the sausage to the butcher, where it was examined. Aside from the appearance of the maggots, the sausage gave no evidence, either from odor or appearance, of being unwholesome. The next day, inspectors from the Los Angeles Health Department visited the plaintiff's home and obtained the remainder of the sausage. The inspectors gave testimony that there were no maggots at that time and the meat appeared fresh and wholesome. The Health Department also did a microscopic examination which found no contamination. The California Supreme Court found that maggots, though naturally arousing a feeling of revulsion, are not found exclusively on filthy, decomposed, and putrid animal substance. Their presence, standing alone, furnished no evidence that the sausage was unwholesome. The undisputed evidence also showed that the defendant's place of business was clean and sanitary. There was no evidence to support a finding of negligence on the part of the defendant. Further, the only credible evidence as to the condition of the meat was the microscopic examination the following day, which found that the meat was pure and wholesome. The Court concluded that maggots will be found on meat that is not putrid and decomposed. Therefore, the plaintiff did not meet her burden of proving that the food was not reasonably fit for human consumption.

A close reading of the Reese decision shows that its somewhat counterintuitive result is explainable on the ground that the evidence that the sausages were wholesome was so strong as to be preclusive of any contrary possibility, much less inference. After all, it is the rare food poisoning case where city health inspectors get to make a microscopic examination of a portion of the suspect food the very next day and rule out any organism from food poisoning groups. There was no evidence (at least presented to the 1937 court) that linked the plaintiff's particular illness, which was botulism, to any particular health hazard attributable to the defendant. (SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009))

Law:

In Minder v. Cielito Lindo Restaurant, 136 Cal.Rptr. 915, 67 Cal.App.3d 1003 (Cal. App. 1977) ("Minder"), the California Second District Court of Appeal noted that food poisoning cases are generally difficult to substantiate because the suspected food has been ingested and is unavailable for analysis. Nevertheless, like any other personal injury action, the plaintiff must prove that the food was unwholesome or unfit and caused their illness, irrespective of whether the action is based on negligence or warranty. The unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it (at 1008):

The sole issue on appeal is whether respondents met their burden of showing that the probable cause of their illness was contaminated food eaten at restaurant. We conclude that they did not.

Decisional law has recognized that food poisoning cases are difficult to substantiate generally because the suspected food has been ingested and is unavailable for analysis. Nevertheless, like any other personal injury action the plaintiff must prove that the food was unwholesome or unfit and caused his illness, irrespective of whether the action is based on negligence or warranty. (2 Frumer & Friedman, Products Liability, § 25.01, p. 653) In Stewart v. Martin, 353 Mo. 1, 181 S.W.2d 657, 658, the Missouri Supreme Court said: "The unwholesome character of food is not established, nor is a prima faxie case made, merely by showing that the plaintiff became sick after eating it. (Citations.) We might add that the rule last above announced seems to be universal.' Likewise, in Franke's, Inc., v. Bennett, 201 Ark. 649, 146 S.W.2d 163, 164, where plaintiff claimed to have been made ill from eating sea scallops, the court said: 'We do not think that, the mere fact that a person eats food in a restaurant, hotel or cafeteria and thereafter becomes ill, is of itself sufficient to establish liability on the owner, but the proof must go further and show that some particular article of the food consumed was in fact unwholesome and unfit for human consumption."

In Minder, the plaintiffs suffered an extended bout of food poisoning in the days after eating at the defendant restaurant. Bacterial cultures taken almost two weeks after the meal identified Shigella Flexneri bacteria. The plaintiffs' treating physician concluded that they received this bacteria from ingesting contaminated food. The doctor testified that this particular strain of bacteria could be transmitted from toilets or from any object that might be touched by a hand that then touches the mouth. The health department inspected the restaurant both before and after the plaintiffs' visit to the restaurant. The inspector observed the following unsanitary conditions and code violations both before and after the incident (at 1007):

Rodney Allen Hiemstra testified on behalf of respondents. He was employed by Ventura County Environmental Health Department and his duties were basically to enforce the state Health and Safety Code which includes inspecting restaurants for sanitation conditions and for violations of the code. On October 27, 1972, he visited restaurant for a regular inspection, and he observed dirt, grease and food particles in the corners of the floor and behind the stove, which was in his opinion unsanitary and unhygienic. He testified to other unsanitary conditions that he observed and code violations, including an ice machine that was without a side panel, thus making the ice subject to contamination from dust and possibly flies. Further, the food storage area did not comply with the code in that the food was stored directly on the floor and not six inches above it. He revisited restaurant on November 9, 1972, and stated that in his opinion the conditions had not changed and constituted an unhealthy or unhygienic condition. He again inspected restaurant on January 26, 1973, and stated that he did not see any change in conditions. That after this inspection, he requested stool samples from all food handlers or employees of the restaurant. The samples were tested and the result was 'no enteric.' Based on this investigation, he stated he was unable to form any conclusions or opinion with respect to whether or not a food poisoning case had occurred.

After discussing and weighing several factors, the Court concluded that this evidence did not meet the plaintiffs' burden of showing that the probable cause of their illness was contaminated food from the restaurant (at 1008-1011):

Numerous decisions have established that certain evidence is helpful in proving, or disapproving, causation in food poisoning cases. 1 We have compared this kind of evidence with the facts of this case as follows:

(1) Where the food or beverage is not outwardly deleterious the burden of proof is greater, and mere proof of illness without a showing of unwholesomeness and causal connection is insufficient. In Williams v. Coca-Cola Bottling Company, (Mo.App.) 285 S.W.2d 53, the court said at page 57: 'Plaintiff's evidence of impurity and cause and effect, depoending as it does upon nothing more than proof of the swallowing of a drink and subsequent illness, leaves her proof in the realm of [67 Cal.App.3d 1009] speculation and conjecture.' In our present case there was no evidence that the food, drinks, dishes, silverware, etc., appeared to be contaminated in any way, as a matter of fact the testimony of respondents was to the contrary.

(2) Illness of others who have eaten the same food at approximately the same time. While this is not controlling it can support an inference of probable cause, although admittedly some other factor is usually required in order to tilt the balance in favor of a finding of unwholesomeness. In 2 Frumer & Friedman, Products Liability, Supra, at page 667 it states: 'While evidence that other persons besides plaintiff became ill may justify a finding of unwholesomeness, it should be noted that evidence that ill effects were not suffered by others may justify a converse result.' We are not inclined to be overly impressed by the relevance of this kind of evidence, however, there is very little evidence, if any, in this category that aids respondents. Robert Howell, who ate with respondents was unaffected. His wife, who was pregnant had diarrhea a few days later but her doctor

Page 919

could not diagnose the cause. There was no evidence of other complaints made to restaurant, and the owner testified there had been none since 1953 when restaurant opened except one that was inconclusive.

(3) Causation may be successfully established by a process of elimination where the food is not outwardly deleterious. Example: evidence that other persons ate everything that plaintiffs ate except a tamale thereby pointing to the tamale as the cause of illness. The record is devoid of any evidence of this nature.

(4) Scientific analysis of the food can support an inference of probable cause. None of the food here was analyzed or examined and the stool samples of restaurant's employees were tested and the results were negative. Mr. Hiemstra, the health inspector, testified that based on his investigation, he was unable to form any conclusions or opinions with respect to whether or not a food poisoning case had occurred.

(5) Other causes. If plaintiffs' illness is explainable on grounds other than unwholesomeness, it may be necessary to exclude such causes. [67 Cal.App.3d 1010] Example: In Payton v. Lee, 88 Ga.App. 422, 77 S.E.2d 77, plaintiff fell ill after ingestion of potato salad. Her physician diagnosed her illness as food poisoning. The court held that such evidence did not exclude the possibility that plaintiff was suffering from a virus infection which was prevalent in the community at that time. In the case at bar Dr. McNamara testified that if plaintiffs, or one of them, had eaten at a restaurant on December 16, 1972, it would be just as logical that the contamination could have resulted therefrom or it could have come from a source other than food. Either could have transmitted it to the other. Respondents could not recall whether they had eaten at home or at a restaurant, or both, on December 16.

This case is very similar to Stewart v. Martin, supra, 181 S.W.2d 657, where plaintiff had eaten a ham sandwich at defendants' restaurant. Plaintiff testified that the sandwich was 'very good.' He became quite ill and saw a physician, who on seeing plaintiff's diarrhea, vomiting and bloody stools, concluded the illness was caused by meat food poisoning. The court in denying plaintiff recovery said at page 658: 'Plaintiff has shown nothing more in this case. Not only that, but his own testimony about the sandwich tended to show its wholesomeness. . . . Furthermore, he partook of food or beverage on four different occasions within eighteen hours . . . of the time he became sick. He had no medical testimony whatever to prove that eating this ham did cause his illness. . . . His physician only 'though' his condition was food poison. . . . This leaves plaintiff's case in the realm of speculation and conjecture.'

The only other evidence relied upon to support respondents claim of causation, was testimony of two health inspectors. This evidence concerned certain unsanitary conditions found at restaurant. These conditions, absent further evidence, could not establish probable cause. In Beaupre v. Nave, 13 Cal.App.3d 402, 91 Cal.Rptr. 473, plaintiffs alleged they had contracted infectious hepatitis because they were frequent patrons in defendants' restaurant. The trial court had found that 'From time to time defendants did violate health and sanitary rules . . . the food, beverages, utensils, bathroom and floors of the restaurant were unclean . . . (and) were not reasonably fit for the purpose . . . intended.' (Id. at p. 407, 91 Cal.Rptr. at p. 476.) The trial court nevertheless decided plaintiffs had failed to prove causation. This court, after citing the above findings agreed and said at page 407, 91 Cal.Rptr. at page 476: 'But the sum of all these findings falls short of the necessary finding that anything that the defendants did or failed to do Caused any injury to the plaintiffs.' (Italics in original.)

[67 Cal.App.3d 1011] We conclude that respondents, as a matter of law, failed to meet their burden of showing that the probable cause of their

Page 920

illness was contaminated food eaten at restaurant.

In SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009) ("Sarti"), the trial court had read Minder for the proposition that reasonable inferences are never, or hardly ever, available in food poisoning cases. However, the California Fourth District Court of Appeal held that Minder should not be construed to preclude the use of reasonable inferences to show causation in food poisoning cases. The Court held that food poisoning cases are governed by the same basic rules of causation that govern other tort cases and that reasonable inferences drawn from substantial evidence are available to show causation (at 1189-1190):

The trial judge in this case read Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003, 136 Cal.Rptr. 915 (Minder) for the proposition that reasonable inferences are never, or hardly ever, available in food poisoning cases. Based entirely on the Minder opinion, he granted a judgment notwithstanding the verdict (often called a “jnov”) even though the

[167 Cal.App.4th 1190]

judge himself made it clear he would have voted with the jury on the question of liability. 1

We can understand why the judge was so cautious, but we do not think that Minder, strictly construed, should be read to preclude the use of reasonable inferences to show causation in food poisoning cases. To the degree that Minder may, arguendo, be susceptible for the proposition that inferences are unavailable in food poisoning cases, or that food poisoning defendants are somehow accorded a special, protected status with an abnormally “heightened” standard of causation, we respectfully decline to follow it. Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases. Reasonable inferences drawn from substantial evidence are indeed available to show causation. We will therefore reverse the jnov and order reinstatement of the original verdict.

The Court agreed with the Minder court that just because a person gets sick soon after eating at a restaurant doesn't prove that bad food or some other contamination at the restaurant caused it. Any other rule would be untenable, since it would make restaurants de facto health insurers of their customers. The proof must go further than mere after-the-restaurant-meal illness (at 1196):

The Minder court began its legal discussion with the proposition, taken from a Missouri Supreme Court case (Stewart v. Martin (1944) 353 Mo. 1, 181 S.W.2d 657) that merely showing that someone “ ‘became sick’ ” after eating at a restaurant does not establish that “ ‘unwholesome’ ” food served at the restaurant caused the illness, or even establish a “ ‘prima facie case’ ” that food served at the restaurant caused it. That idea was immediately reiterated with a quotation from an Arkansas Supreme Court case (Franke's Inc. v. Bennett (1941) 201 Ark. 649, 146 S.W.2d 163), the point of which was that “ ‘the proof must go further’ ” than mere after-the-restaurant-meal illness. (Minder, supra, 67 Cal.App.3d at p. 1008, 136 Cal.Rptr. 915.)

[3] So far so good. The Minder court was merely making the point that the logical fallacy of “post hoc, ergo propter hoc” (after the fact, therefore because of the fact) is not available to win a food poisoning case. And of course no one can reasonably quarrel with that particular supposition. Just because you get sick soon after eating at a restaurant doesn't prove bad food or some other contamination at the restaurant caused it. Any other rule would be untenable, since it would make restaurants de facto health insurers of their customers.

However, to the extent that Minder requires a heightened level of proof of causation in food poisoning cases, the Court declined to follow it. The Court explained that the basic elements of proof in a food poisoning case are essentially those of any personal injury action (at 1201-1202):

a. Minder's general departure from established rules of tort causation

[4] The Minder court never expressly said that it thought that defendants in food poisoning cases deserved a break from ordinary rules of tort causation,

[167 Cal.App.4th 1202]

but that thought permeated the court's analysis, and it was certainly picked up by the trial judge in our own case, who described Minder as enunciating a “heightened” standard of causation.

We cannot agree, however, with the strong implication in the Minder analysis that food poisoning cases are somehow unique in tort law. Ironically, the current version of Frumer & Friedman's treatise on products liability-the 1977 version of which seemed to have played a role in Minder's analysis-is plainly to the contrary. Food poisoning cases follow the same rules as other tort cases: “The basic elements of proof in a food poisoning case are essentially those of any personal injury action.” (4 Frumer & Friedman, Products Liability, § 48.06, p. 48-23 (rel. 109-8/2008) (4 Frumer & Friedman).)

The Court noted that the ideal factual situation in a food poisoning case would have all of these four elements: (1) simultaneous illness of a group of people who eat the same food at the same time; (2) all patients manifesting classic food poisoning symptoms; (3) prompt investigation of suspect food; and (4) microscopic examination of that food. However, the ideal situation will not always present itself to a court; thus, food poisoning cases often depend upon expert testimony (at 1196):

The current Frumer and Friedman treatise, apparently like its 1977 version, also continues to list the sort of facts that can prove a food poisoning case, but the spin is significantly different than the one apparently described in the Minder opinion. The current treatise states that “The ideal factual situation in a food poisoning case” would have all of these four elements: simultaneous illness of a group of people who eat the same food at the same time, all “patients” manifesting classic food poisoning symptoms, prompt investigation of suspect food (like potato salad left out too long), and “microscopic examination” of that food, which might show, for example, a staph infection, and which would correlate with the same infection sustained by the plaintiff. (4 Frumer & Friedman, supra, § 48.06[2], p. 48-24, italics added.)

But the Frumer & Friedman treatise recognizes that this “ideal ... situation” will not always present itself to a court, and thus notes that often the plaintiff will have “recovered to the point where recovery of the pathogenic bacteria is no longer possible” and, also the food may not be “available for bacteriological study,” besides which, often doctors may decide that the illness is not serious enough to “warrant[ ] the expense of such an investigation.” (4 Frumer & Friedman, supra, § 48.06[2], p. 48-24.) And thus the treatise recognizes that: “Food poisoning cases, just as any other personal injury cases, often depend upon expert testimony.” (Id. at § 48.06 [3], p. 48-25.)

The Court declined to follow Minder to the extent that it suggested that reasonable inferences are not available to prove causation in a food poisoning case (at 1202-1203):

b. Minder's departure from established case law allowing use of reasonable inferences

[5] While the Minder court never straight out declared that inferences are off limits in food poisoning cases, 9 its treatment

[85 Cal.Rptr.3d 518]

of the various scenarios and

[167 Cal.App.4th 1203]

its discussion of sanitation violations suggest that the court did not think that reasonable inferences are available to prove a plaintiff's case in a food poisoning case. (Either that, or, its implication is that no inference is ever quite good enough to be reasonable.) To the degree that the Minder opinion does indeed suggest a no-inference rule (or, at least, a presumption against inferences different from other tort cases), it contradicted established precedent in existence at the time.

The Court also held that it is not necessary under California law that the circumstances establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. The proper standard for proving causation is whether the defendant's conduct was a substantial factor in bringing about the injury. A "substantial factor" is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm (at 1205-1206):

c. Minder's preference for a rule requiring exclusion of all possible alternative causes also departed from case law

[6] Another rule that the Minder opinion never actually articulated, but which may arguably be mined from its analysis is a requirement that the plaintiff rule out all other causes of the illness. The argument for an “all alternatives must be ruled out” approach is also pressed by Salt Creek directly in the case before us. Salt Creek asserts that California law “requires proof excluding other causes.”

We have already quoted the plain language from the Dougherty decision that shows that exclusion of alternatives is not the rule. (But we'll quote it again: “ ‘It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion.’ ” (Dougherty, supra, 74 Cal.App.2d at p. 136, 168 P.2d 54, quoting Ley v. Bishopp, supra, 88 Cal.App. at p. 316, 263 P. 369.)) We need only add that the rule-out-all-other-possible-causes rule is contrary to what our Supreme Court would later say in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872 (Mitchell), as we are about to show.

d. Minder's variance from current California tort law regarding the standard of causation

We now come to that problematic phrase, “probable cause,” that the Minder court treated, without authority, 11 as the talisman for what the plaintiffs had to

[85 Cal.Rptr.3d 520]

prove in that case. If a law student had only the Minder case, he or she would likely assume that the causation element in California tort and warranty law was “probable cause.”

[167 Cal.App.4th 1206]

“Probable cause” is an important phrase in criminal law, and, of course, the lack of it in a previous lawsuit is an element of a civil tort cause of action for malicious prosecution. Ironically enough, in both the criminal and malicious prosecution contexts courts have tended to define the phrase fairly leniently. Thus in the criminal context, probable cause has been defined as “an ‘ “honest and strong suspicion” ’ ” (e.g., People v. Perrusquia (2007) 150 Cal.App.4th 228, 236, 58 Cal.Rptr.3d 485 (dis. opn. of Bedsworth, J.)) or “a reasonable ground for belief of guilt” (e.g., Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033 1044, 55 Cal.Rptr.3d 158 (internal quotation marks omitted).) In the civil malicious prosecution context it has been defined with similar lenienty, as whether “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel).)

Which is all very curious, because one cannot read the Minder opinion as a whole without getting the distinct impression that what it meant by “probable cause” was a far cry from honest suspicion, reasonable ground, or reasonable tenability. Clearly, Minder had something more “heightened” in mind, something that, for example, would be impervious to such evidence as a treating physician's opinion or conclusions that might readily be drawn from the fact of the sanitation violations. 12

Minder's “probable cause” language was at the very least dubious even at the time. (See Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 127, 104 Cal.Rptr. 433, 501 P.2d 1153 [impliedly endorsing a plaintiff's “substantial factor” causation analysis in the context of strict products liability case].) But it is most certainly inconsistent with the law of causation as it stands today, in the light of the Mitchell case.

[7] Mitchell was the case that disapproved an old jury instruction (BAJI No. 3.75) because it used the phrase “proximate cause,” finding the phrase confusing, and endorsed a rival jury instruction

[85 Cal.Rptr.3d 521]

(BAJI No. 3.76), which asked “whether the defendant's conduct was a substantial factor in bringing about the injury.” (See Mitchell, supra, 54 Cal.3d at p. 1049, 1 Cal.Rptr.2d 913, 819 P.2d 872, italics added, internal quotation marks omitted.) And, indeed, in the case before us, the jury was given (and correctly so in light of the Mitchell case) a substantial factor instruction, with “substantial factor” being defined as a “factor that a reasonable person would consider to have contributed to the harm.” In fact, that instruction told the jury, “It [the substantial factor] does not have to be the only cause of the harm.” (Italics added.) Whatever else, “substantial factor” does not equal “exclusive factor.”

In SARTI, the plaintiff and a friend had eaten at the defendant restaurant. They split an appetizer consisting of raw ahi tuna, avocado, cucumbers, and soy sauce. The plaintiff became ill the next day and was eventually found to have campylobacter bacteria. The Court accepted that campylobacter is not found in raw tuna unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common. Her sickness was reported to the county health department, which resulted in a "food borne illness" report a little less than a month after the meal. The report identified four practices at the restaurant that could lead to cross-contamination: (1) wipe-down rags were not being sanitized between wiping down surfaces; (2) there was an insufficient amount of sanitizer in the dishwasher; (3) chicken tongs were sometimes used for other food; and, (4) raw vegetables were stored under raw meat, so that a drop of raw meat juice might get on the vegetables. There was also testimony that the waiter who served the plaintiff had used a wet, unsanitized rag stored underneath the bar to wipe down her table. Based on all these facts, the Court found that the expert testimony linked the particular kind of food poisoning experienced by the plaintiff to the particular kind of health violation attributable to the defendant. The expert also explained that it is very common for only one person to get sick when eating the same meal with another person. Therefore, the Court concluded that an inference of causation was reasonable (at 1207-1208):

1. The Inference Here Was Reasonable

[8] In the case before us, unlike Minder, there was expert testimony expressly making the link between the particular kind of food poisoning involved (campylobacter) and the particular unsanitary conditions found at the restaurant-cross-contamination from raw chicken. An expert for Sarti, Dr. Andrew Kassinove, testified that anything that might have touched something that touched raw chicken would be cross-contaminated. Particularly given the lack of proper sterilization in the dishwasher and the waiter's constant use of an unsterilized wipe down rag, a reasonable jury could infer either that a rag used to wipe down a raw chicken board was used to wipe down a vegetable or tuna board, or, alternatively, that a drop or two of raw chicken juice may have leaked onto some of the vegetables stored beneath it. As Dr. Kassinove testified: “Any preparation in this case-this case dealt with raw cucumbers, wasabi, ginger, all those in addition to Ahi tuna which were uncooked, and vegetables that easily could have been prepared on a surface that had cross-contamination.”

[167 Cal.App.4th 1208]

We should add that Dr. Kassinove also testified as to any necessary implications from Sarti's companion's lack of illness. Dr. Kassinove said that it was “very common for people to eat at the same

[85 Cal.Rptr.3d 522]

restaurant or eat the same meal and only one person get sick. That one person had the misfortune or the metabolism or the bad luck that their body was susceptible to it at that time.... [¶] ... Maybe two people even could be contaminated who ate from the same dish, but it's much more likely one person would get sick. Also, that one person might get sicker than the other two people who ate the contaminated piece of chicken. It's very common for one to get really sick, the other one to get a little stomach upset or some mild symptoms.”

The expert testimony in this case linking the particular kind of food poisoning experienced by the plaintiff to the particular kind of health violation attributable to the defendant is what distinguishes this case from Minder.

In Dougherty v. Lee, 74 Cal. App. 2d 132, 168 P.2d 54, 1946 Cal. App. LEXIS 1136 (Cal. App. April 23, 1946), seven of the plaintiff's dairy cows died from botulism poisoning after eating hay purchased by the plaintiff from the defendant seller. The California Third District Court of Appeal explained that the burden was on the plaintiff to show by a preponderance of the evidence that the hay contained poison that killed the cows, but that it was not necessary for the plaintiff to furnish evidence absolutely precluding the possibility of the cattle procuring some other poisonous food. The Court assumed that this rule applied whether suits for damages resulting from food poisoning were based on negligence or breach of implied warranty. Where the evidence is susceptible to a reasonable inference that death or illness resulted from the eating of contaminated food, a prima facie case of negligence or of a breach of implied warranty of the fitness of the food has been established (at 135-137):

(2) Of course the burden was on the plaintiff to show by a preponderance of the evidence that the hay which he purchased from the defendant contained poison which killed the cows. But it was not necessary for the plaintiff to furnish evidence which absolutely precluded the possibility of the cattle procuring some other poisonous food. The case of Monahan v. Economy Grocery Stores Corp., 282 Mass. 548 [185 N.E. 34], upon which the appellant relies, properly stated the rule requiring the plaintiff to establish a prima facie showing, in a case  [**56]  of this nature, that the food in question is poisonous or deleterious. The court said in that regard:

"The plaintiff was not bound to exclude every other possible cause for his illness, but he was required to show that the probable cause was the unwholesomeness of the corn.  [*136]  (Citing authorities.) In our opinion, the evidence did not afford a basis [***7]  for more than a conjecture that the corn was unwholesome and that the plaintiff's illness was due to the corn rather than to other food or drink partaken by the plaintiff and his wife or to intestinal influenza." (Italics added.)

In the Monahan case, supra, judgment for the defendant was affirmed. That was a suit for damages for breach of implied warranty of the fitness for human consumption of canned corn purchased by the plaintiff, from which she made and ate chowder. It was alleged the canned corn contained ptomaine poison. Twelve hours after eating the chowder the plaintiff became ill, suffering severe pains in her stomach and vomiting. She testified that the chowder "looked, smelled and tasted good." None of the chowder or canned corn was analyzed or examined. Plaintiff's physician testified that "every symptom of the plaintiff and his wife was consistent with intestinal influenza, and that their subnormal temperature was inconsistent with food poisoning." The judgment for the defendant was therefore affirmed.

In the case of Barham v. Widing, 210 Cal. 206 [291 P. 173], the Supreme Court quoted with approval from the opinion of this court regarding the rule [***8]  with respect to the burden of proof and the sufficiency of the evidence to establish the negligence of a dentist in using an improper solution or an unsterile hypodermic needle in treating an infected jaw after an ulcerated tooth had been removed. Infection followed and the plaintiff was seriously damaged. It was contended that the plaintiff was what is commonly termed "a bleeder," and that the evidence did not show that the infection and damage was the result of the negligent use of an unsterile needle or contaminated solution. Judgment for the plaintiff was affirmed. Regarding the sufficiency of the evidence required of the plaintiff to establish a case of negligence under such circumstances the court said at page 215:

"It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. It is sufficient if there is substantial evidence upon which to reasonably support the judgment. (Ley v. Bishopp, 88 Cal.App. 313, 316 [263 P. 369].)"

Suits for damages resulting from partaking of poisoned  [*137]  food, whether [***9]  they are based on negligence or upon a breach of implied warranty, are closely allied, and we assume the foregoing rule would apply to both classes of cases.

For the purpose of this appeal the appellant concedes that the hay, which is involved in this suit, was sold by the defendant with the implied warranty provided for in section 1735 (1) of the Civil Code that it was reasonably fit for the purpose of feeding the dairy cows.

(3) Where the evidence is susceptible of a reasonable inference that death or illness resulted from the eating of contaminated food, a prima facie case of negligence or of a breach of implied warranty of the fitness of the food, has been established, and it is erroneous for the court to direct a verdict for the defendant. Under such circumstances a judgment for the plaintiff on that issue should not be disturbed on appeal. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272 [93 P.2d 799]Jensen v. Berris, 31 Cal.App.2d 537 [88 P.2d 220]Stell v. Townsends California Glace Fruits, Inc., 138 Cal.App.Supp. 777 [38 P.2d 1077].)

The Court found that the evidence established a prima facie case that the cows died from poison contained in the hay (at 137):

(3) Where the evidence is susceptible of a reasonable inference that death or illness resulted from the eating of contaminated food, a prima facie case of negligence or of a breach of implied warranty of the fitness of the food, has been established, and it is erroneous for the court to direct a verdict for the defendant. Under such circumstances a judgment for the plaintiff on that issue should not be disturbed on appeal. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272 [93 P.2d 799]Jensen v. Berris, 31 Cal.App.2d 537 [88 P.2d 220]Stell v. Townsends California Glace Fruits, Inc., 138 Cal.App.Supp. 777 [38 P.2d 1077].)

In Reese v. Smith, 9 Cal. 2d 324, 70 P.2d 933, 1937 Cal. LEXIS 399 (Cal. July 27, 1937), the plaintiff purchased a pound of sausage links from the defendant butcher. She cooked two of the sausages immediately upon returning home from making the purchase and prepared them in the form of a sandwich. She became ill as she finished eating the sandwich. Within a few minutes, neighbors offered their assistance and the police department was notified. About two and a half hours after the plaintiff purchased the sausages, one of the officers went to the ice box to examine the remainder of the sausage and discovered maggots on the open end of the sausage. The officer then took the sausage to the butcher, where it was examined. Aside from the appearance of the maggots, the sausage gave no evidence, either from odor or appearance, of being unwholesome. The next day, inspectors from the Los Angeles Health Department visited the plaintiff's home and obtained the remainder of the sausage. The inspectors gave testimony that there were no maggots at that time and the meat appeared fresh and wholesome. The Health Department also did a microscopic examination which found no contamination. The California Supreme Court found that maggots, though naturally arousing a feeling of revulsion, are not found exclusively on filthy, decomposed, and putrid animal substance. Their presence, standing alone, furnished no evidence that the sausage was unwholesome. The undisputed evidence also showed that the defendant's place of business was clean and sanitary. There was no evidence to support a finding of negligence on the part of the defendant. Further, the only credible evidence as to the condition of the meat was the microscopic examination the following day, which found that the meat was pure and wholesome. The Court concluded that maggots will be found on meat that is not putrid and decomposed. Therefore, the plaintiff did not meet her burden of proving that the food was not reasonably fit for human consumption (at 328-330):

(3) "In analyzing the evidence adduced at the trial it is at [***8]  once apparent that the presence of the maggots is a treacherous circumstance, -- a circumstance fraught with the capability as well as the tendency to deceive and mislead. The memory of that with which maggots are generally associated from common experience naturally arouses a feeling of revulsion. Under the influence of emotions thus aroused a greater significance and importance might easily be attributed to the presence of maggots  [**936]  than pure reason would allow. Biologically, maggots are but the larvae of insects, most commonly that of the housefly. They are not poisonous; indeed it is conceded that maggots are used in modern surgery for the treatment of open wounds. Moreover, maggots are not found exclusively on 'filthy, decomposed and putrid animal substance'. Their presence, therefore, standing alone,  [*329]  furnished no evidence that the sausage was of the quality and character found by the trial court.

"The record reveals but two facts legally established by plaintiff to support the judgment: First, that she became ill while eating the sausage; and, second, that there were maggots on the remainder of the sausage."

It should be added that the undisputed [***9]  evidence showed that defendant's place of business was clean and sanitary and that the food was prepared and sold under proper local sanitary regulations and inspection. There is not a word of evidence to support the finding of negligence on the part of the defendant.

(4) Upon the second cause of action appellant's attack rests upon the claim that the evidence is insufficient to prove a breach of the implied warranty that the food when sold was reasonably fit for consumption. The trial court found that respondent's illness was caused by her consumption of the sausages, "said food being a filthy, decomposed and putrid animal substance and unwholesome and unfit for human consumption". This finding is based solely upon the testimony of respondent's physician, who testified that he reached the conclusion that the food was unwholesome because of the presence of the maggots -- that maggots feed on putrid material only and never feed upon wholesome, clean flesh. It is a matter of common knowledge that flies will attack and lay their eggs upon fresh clean meat and that maggots will hatch and develop in a very short time thereafter. It is entirely upon this false premise that the physician [***10]  based his testimony -- that the meat was putrid because maggots were on it, that maggots were on it because it was putrid, that because it was putrid the maggots were toxic, and that because they were toxic they caused respondent's illness. The only credible evidence as to the condition of the meat was that it was pure and wholesome when chemically analyzed on the day following the sale. Yet this was the only portion of the meat sold upon which any maggots had been seen. This is the "fact" upon which the physician drew his inference that the meat was decomposed on the previous evening. But reason compels the opposite inference and reason is the requisite of all inferences. It was said in Mix v. Ingersoll Candy Co., 6 Cal. (2d) 674, 681 [59 Pac. (2d) 144]: "Although it may frequently be a question for a jury as the trier of facts to determine  [*330]  whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only [***11]  if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones."

Hence, since the proven facts are that maggots were attached to this particular meat which was found to be pure and wholesome the following day, the only reasonable inference to be drawn from these facts is that maggots will be found on meat which is not putrid and decomposed. For these reasons the testimony of this witness in which he drew the conclusions above noted does not create a conflict in the evidence and does not meet respondent's burden to prove that the food was not reasonably fit for human consumption as required by section 1735 of the Civil Code.

In SARTI, supra, the Court of Appeal concluded that its ruling was consistent with Reese (at 1209-1210):

A close reading of the Reese case shows that its somewhat counterintuitive result is “explainable” on the ground that the evidence that the sausages were “wholesome” was so strong as to be preclusive of any contrary possibility, much less inference. After all, it is the rare food poisoning case where city health inspectors get to make a microscopic examination of a portion of the suspect food the very next day (and we note, presumably the passage of time would only increase the probability of maggots) and rule out any organism from “food poisoning groups.” And indeed, the later Dougherty opinion would distinguish Reese on that very basis. (See Dougherty, supra, 74 Cal.App.2d at p. 138, 168 P.2d 54.)

On top of that, the treating physician's opinion that his patient was ill with botulism, when examined in the light of the uncontroverted evidence that botulism could “only flourish where there is no oxygen,” that botulism “does not manifest itself for several hours after contaminated food is eaten” and, of

[167 Cal.App.4th 1210]

course, that the plaintiff became ill almost immediately upon consuming the sausage sandwiches, completely undercut the plaintiff's case. (Reese, supra, 9 Cal.2d at p. 327, 70 P.2d 933),

Perhaps not wanting to be associated with maggoty sausages, Salt Creek has not cited or relied on the Reese decision in any way in its briefing. Though Reese on the surface Reese seems a strong case for the defense in food poisoning cases, on reflection it actually underscores our “strict” reading of Minder. That is, in Reese, there was no evidence (at least presented to the 1937 court) that linked the plaintiff's particular illness, which was botulism, to any particular health hazard attributable to the defendant. For the Reese court, the timing of the illness, the relatively oxygen rich environment of the ice box, and the microscopic examination ruled out any attribution of the plaintiff's botulism to the sausage that had maggots on it. And, we should add, the Reese court did not suggest that inferences were off limits, as a matter of law, to prove a food poisoning case. It merely held that under the particular evidence before it, the inference of causation was not reasonable.

Authorities:
Minder v. Cielito Lindo Restaurant, 136 Cal.Rptr. 915, 67 Cal.App.3d 1003 (Cal. App. 1977)
SARTI v. SALT CREEK LTD, 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (Cal. App. 2009)
Dougherty v. Lee, 74 Cal. App. 2d 132, 168 P.2d 54, 1946 Cal. App. LEXIS 1136 (Cal. App. April 23, 1946)
Reese v. Smith, 9 Cal. 2d 324, 70 P.2d 933, 1937 Cal. LEXIS 399 (Cal. July 27, 1937)