Ronnie Mitchell appeals from the trial court’s grant of summary judgment to the defendants in the action brought by Mitchell to recover damages for personal injuries he suffered when he broke a tooth on a small, hard object after biting into a hamburger at a Wendy’s restaurant. He contends summary judgment for the defendants was improper, arguing that at least a jury question exists as to whether the restaurant breached the implied warranties of merchantability and fitness for purpose. We agree and reverse. The record shows that Mitchell bought a hamburger from Wendy’s. When he began to eat the hamburger, he felt “something extremely hard” strike his tooth, causing pain that “felt like someone had shot me in the tooth with a BB. It was painful. It got more painful.” He immediately stopped chewing, removed the food from his mouth, and discovered the particle he had bitten down on. He described it as a “bone color” particle that broke when he bit down on it. He was able to retrieve two pieces that were big enough to see, which were about the thickness of a pencil lead, about one-eighth to one-tenth of an inch. He reported it to the restaurant’s manager, who apologized, threw the entire tray away, and asked him to complete a claim form, which he did. Mitchell could not state with certainty whether the object came from the lettuce, the tomato, the bread, or the meat, but he knew that it had been somewhere in the hamburger and assumed the object was a bone chip in the meat.
Mitchell argues that the presence of a bit of bone in the hamburger constituted a “defect” that rendered the hamburger unmerchantable under OCGA § 11-2-314. Wendy’s first asserts that Mitchell’s claim is for “negligence” for having been served “adulterated food.” That is not the case, as Mitchell’s complaint alleges a breach of implied warranties under OCGA § 11-2-314.1 Wendy’s then argues that because the “defect” was a substance that is “natural” to beef it cannot be liable, nor can it be liable for defects that are “discoverable by ordinary prudence on the part of the consumer.” We do not agree.
