On 4 or 5 occasions over a 2-month period, John Manley purchased single- or double-patty hamburgers garnished with cheese, tomatoes, pickles, onions, bacon, mayonnaise, and ketchup, a side order of french fries, and a soft drink from a Wendy's fast-food restaurant located at 350 South College Road, Wilmington, North Carolina, owned and operated by First Sun Management Corporation (First Sun), a franchisee of Wendy's. Manley paid cash and has no receipts of the purchases. Several months later, Manley experienced mild discomfort, which turned into bouts of fatigue, coughing, and choking. Manley sought medical help, but doctors were unable to diagnose his symptoms for 2 years. After experiencing gastrointestinal problems, a pulmonologist surgically removed a foreign object approximately 2 inches in length from Manley's lungs. It was a plastic fragment from an eating utensil that was embossed with a portion of the Wendy's logo. Manley admits that he does not recall ingesting the fragment.

Manley sued First Sun, alleging that the franchisee breached the implied warranty of merchantability associated with food by serving him a hamburger with a 2-inch plastic fragment in it. Manley sought to recover damages for medical costs incurred and pain and suffering he alleged prevented him from performing his normal activities and employment obligations. First Sun defended, arguing that Manley had not identified the specific hamburger that allegedly contained the plastic fragment.

Issue Has there been a breach of the implied warranty of merchantability?

Did Manley lack evidence to prove his claim? What evidence do you believe would support his claim? If the case went to trial would you have voted that the defendant was liable? Why or why not?