This claim (or one quite like it) should be cognizable under § 2-315 of the Uniform Commercial Code.  If the seller knows or has reason to know of the buyer's particular purpose (food suitable for a Sikh wedding); the seller knows or has reason to know that the buyer is relying on the seller's expertise to select the right goods (food suitable for a Sikh wedding); and the buyer actually -- and, some courts might add, reasonably -- relies, resulting in injury to the buyer or someone else in privity with the buyer (whether the reception guest would qualify depends on his relationship to the buyer, the location of the reception, and what state's law governs the claim), the injured party may recover damages for the seller's breach of warranty, including consequential damages attributable to personal injury (death being the most extreme form) proximately caused by the breach of warranty.

I realize commercial law claims and remedies aren't usually as sexy or lucrative as their tort counterparts; but UCC § 2-315 would take a mean bite here if the decedent's estate can satisfy the privity element.

Keith  


Keith A. Rowley
William S. Boyd Professor of Law
William S. Boyd School of Law
University of Nevada Las Vegas
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From:	Neil Foster <Neil.Foster@newcastle.edu.au>
To:	Robert Stevens <robert.stevens@ucl.ac.uk>, "obligations@uwo.ca" <obligations@uwo.ca>
Date:	01/21/2010 02:38 PM
Subject:	Re: Duty, and Breaking Eggs

---

Dear Rob;
That is a really interesting case! I am glad to see that the Court say how hard they found the decision- "finely balanced" [20], "not an easy question" [25]. It raises, as Rob says, the whole question of whether a duty of care can be formulated based on the specific knowledge of the defendant, as opposed to as a general principle. I think actually the issue should have been framed as a question of breach, and if it were I am not sure that the decision is correct.
One of the fascinating aspects of the case to my mind is the passing comments that are made about the content of the duty owed by the caterer. At [25] the court says (given that the caterer knew he was catering for a Sikh wedding)
"In those circumstances he was certainly under a duty to take reasonable care not to serve dishes containing egg in order to avoid offending against Sikh religious principles".
Is that right? Of course it seems reasonable he should be under such a duty to the host, with whom he had a contract- but would that be a duty actionable at the suit of one of the guests? Can you imagine a guest who had suffered no medical harm, who then discovered that egg had been present and was outraged, being able to recover even nominal damages from the caterer?
In the end it is also very interesting that the case ends up being framed in terms that are more reminiscent of a claim in relation to a negligent mis-statement. It is as if the court accepts that a Sikh caterer, knowing Sikh customs, by supplying food is making a representation, not only to the host but to all the guests, that the food is egg-free. At [24]:
"Although [the trial judge] did not express it in quite this way, it is apparent that in his view Mr. Bhamra was entitled to rely on Mr. Dubb to ensure that he did not suffer harm as a result of eating food that contained egg. It may not be particularly  helpful to speak of an assumption of responsibility in a case of this kind, such an approach being more obviously useful in cases such as Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145 in which the relationship between the parties is contractual in all but name. Nonetheless, there is a sense in which that expression reflects what the judge appears to have thought was the position in this case."
Even if that is accepted (and maybe it is the best explanation of the decision), the other thing that leaves one feeling unsatisfied about the case is that it seems fairly clear that the court took the view that the caterer was not telling the truth when he said that he did not obtain the contaminated food from some outside source- but neither the trial judge nor the Court of Appeal was prepared to make an actual finding of dishonesty. Yet the only way that a breach of duty could be found was by acting on that assumption.
Regards
Neil
 

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
http://www.newcastle.edu.au/staff/profile/neil.foster.html
http://works.bepress.com/neil_foster/

>>> Robert Stevens <robert.stevens@ucl.ac.uk> 21/01/10 8:15 >>>

Peter Watts has drawn my attention to a recent decision of the Court of
Appeal of some interest.

Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13 (20 January 2010)

http://www.bailii.org/ew/cases/EWCA/Civ/2010/13.html

A caterer for sikh wedding includes egg in some of the dishes, when this
was inappropriate for cultural reasons. One of the guests is allergic to
egg, but thinking that there won't be any egg used because of the nature
of th occasion, eats the dish, suffers an anaphylaxic reaction and dies.
Caterer liable.

The Court of Appeal see the question as one of duty (cf the American
Restatement (Third) of Torts). Clearly the Defendant ('Lucky Caterers')
owed a duty to the bride's father who employed them not to use eggs in the
dishes, but did they owe a duty of care to the claimant not to physically
injure him by triggering the egg allergy (para 25)?

Moore-Bick LJ states

"First, [the caterer] was under a duty of care to avoid serving food
containing eggs. For reasons given earlier, a person in his position would
not ordinarily be under any such duty, but in the present case such a duty
did exist. In addition, he knew that some people are allergic to eggs and
that any such person would suffer illness or more serious injury if he ate
food containing eggs. He also knew that those who attended the wedding,
including any guest who happened to suffer from egg allergy, would expect
the food to be completely free of eggs and would therefore feel confident
that no harm would come from eating it. Finally, [the Claimant], who knew
himself to be allergic to eggs, had every reason to rely without inquiry
on [the caterer] to supply food which did not contain egg, as would not
have been the case if this had been anything other than an exclusively
Sikh occasion. In our view this very unusual combination of circumstances
is sufficient to extend the scope of [th caterer]'s duty of care to harm
in the form of personal injury suffered as a result of eating food
containing eggs."

Rob

--
Robert Stevens
Professor of Commercial Law
University College London