This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Karen Schafer,





JLC Food Systems, Inc.,

d/b/a Perkins Family Restaurant,



The Restaurant Company,

d/b/a Foxtail Foods, third party defendant,



Filed January 20, 2004


Toussaint, Chief Judge

Dissenting, Minge Judge


Stearns County District Court

File No. C5-02-1707


Kevin S. Carpenter, Carpenter Injury Law Office, 204 Midsota Center, 3701 North 12th Street, St. Cloud, MN 56303 (for appellant)


Roger L. Kramer, Matthew P. Kostolnik, Gislason & Hunter, LLP, Suite 215E, 9900 Bren Road East, P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondent JLC Food Systems)


Dennis S. Ballou, Brownson & Ballou, PLLP, 225 South Sixth Street, Suite 4800, Minneapolis, MN 55402 (for respondent The Restaurant Co./Foxtail Foods)


             Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge


Appellant challenges the district court’s grant of summary judgment in favor of respondents Perkins Restaurant and The Restaurant Company in her negligence action involving an allegedly defective food product.  Because the district court correctly concluded that appellant could not make out a prima facie case of negligence because she could not identify the object that injured her, we affirm. 




The sole issue on appeal is whether the district court erred in concluding that appellant’s failure to identify the object causing her injury precluded her claim for defective manufacture of the food product.

On appeal from summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  This court must view the evidence in the light most favorable to the nonmoving party.  Id.  But summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

            The facts are undisputed.  On January 27, 2001, appellant Karen Schafer ordered a pumpkin muffin while dining at respondent Perkins Restaurant in St. Cloud.  She unwrapped the muffin and used her fork to place a wedge of it in her mouth.  She does not specifically recall biting or chewing it, but when she swallowed it, she felt a sharp pain and a choking sensation in her throat.  At the hospital, she was diagnosed with a scratch on her throat.  No object was observed or retrieved.  Two days later, Schafer was hospitalized because her throat had become infected.  She did not fully recover until April 2001.

            Schafer alleges that the defective condition of the pumpkin muffin was due to its improper manufacture and was the direct cause of her injury.  Discovery revealed that respondent The Restaurant Company, doing business as Foxtail Foods, manufactured the muffin mix.  The night before the muffins were sold, Perkins removed the muffin mix from a sealed bucket, divided it into paper muffin cups, and baked them.     

            In Kneibel v. RRM Enters., 506 N.W.2d 664 (Minn. App. 1993), this court affirmed summary judgment for the restaurant and food producer in a negligence action when the patron ordered spare ribs, took a bite of rib meat, broke his tooth, and swallowed everything in his mouth, including the harm-producing object.  This court affirmed the district court’s dismissal of the lawsuit because the patron did not present evidence showing either the presence of a foreign object or that the food provider breached a duty of care.  Id. at 667.

            The Kneibel court identified the two defective-food-product theories developed in other jurisdictions:  the foreign-natural test and the reasonable-expectation test.  Id. at 666.  It concluded that proof of the identity of the harmful object was required to prevail under either theory.  Id. at 667.  Under the foreign-natural test, identification of the object is required to determine whether it is foreign to the product or natural to the product.  See id. at 666.  If the object is natural to the product sold, there is no liability.  See id.  Under the reasonable-expectation test, proof of the identity of the harmful object is required to establish some foreseeability of harm on the part of the defendant, because the defendant is not an insurer but has only the duty of ordinary care.  Id. at 667.  Under the test, proof of the identity of the object is necessary to determine if that duty of care has been breached.  Id.

Here, Schafer cannot identify the harm-producing object—she, like Kneibel, swallowed everything.  Unlike an exploding-bottle case, in which the bottle is the object clearly causing the injury, there is no evidence indicating that a foreign or harmful object in the muffin caused her injury.  Cf. Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 332, 188 N.W.2d 426, 434 (1971) (exploding-bottle case alleging both negligence and strict-liability theories). 



MINGE, Judge (dissenting)

            I respectfully dissent.  Appellant was eating a pumpkin muffin in a restaurant when she experienced a pain in her throat.  At the hospital it was determined that she had a scratch, but the cause could not be identified.  The crux of the case is whether she had to identify a foreign object in the pumpkin muffin to survive the motion for summary judgment.

            Minnesota caselaw does not compel summary judgment in this situation.  The closest decision involved a restaurant patron who broke a tooth while eating spare ribs.  Kneibel v. RRM Enters., 506 N.W.2d 664 (Minn. App. 1993).  There, despite the patron’s claim that he was injured by a foreign object, it is clear that he knew he ordered meat that was attached to bones, and that a piece of a rib bone could have caused his injury.  Id. at 665.  Since he could not produce a foreign object, he had a marginal claim and it was dismissed.  Id. at 667.  By contrast, no one expects to find a hard or sharp object in a pumpkin muffin.  In a similar case from another state, a person claimed she was injured by an unknown object in a piece of pineapple pie.  Miller v. Meadville Food Serv., Inc., 98 A.2d 452 (Pa. Super. 1953).  There the appellate court reinstated a jury verdict.  Id. at 454.

            The larger question is whether we allow juries to consider civil claims when the injured party cannot produce the object that caused the injury.  This may be less difficult if the underlying claim were framed as a product liability or res ipsa loquitur question.  I suggest that in the context of prepared food consumed on the premises, the patron, the restaurant, and any outside business that may have been the source of the food can present their respective positions and evidence.  The jury or trial court as trier of fact is fully capable of sorting out baseless claims, evaluating credibility, and giving recognition to food safety and inspection procedures.  Reaching the trier of fact should not depend on whether invasive or probing procedures to locate the foreign object are taken before or shortly after the end of the digestive cycle.  Parties cannot be expected to be litigation oriented when they are struggling with an injury.  Thus, I would reverse the summary judgment and allow appellant’s claims to go to trial.

            This dissent is in accord with strict liability developments that recognize reasonable consumer expectations.  See Restatement (Third) of Torts: Product Liability   § 7 cmts. a, b (1998) (stating that “a plaintiff [may] reach the trier of fact when, unable to identify the specific defect, the plaintiff becomes violently ill immediately after consuming the defendant’s food product and other causes are sufficiently eliminated,” and that “[t]he majority view is that . . . the issue of whether a food product containing a dangerous but arguably natural component is defective . . . is to be determined by reference to reasonable consumer expectations within the relevant context of consumption”); Mike Steenson, A Comparative Analysis of Minnesota Products Liability Law and the Restatement (Third) of Torts: Products Liability, 24 Wm. Mitchell L. Rev. 1, 50-51 (1998)  (observing that proof of specific defect is not required by the Restatement and that the Kneibel claim might have been decided differently under the Restatement).