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Eat Movie Popcorn at Your Own Risk of Unpopped Kernels, Judge Says
New York Law Journal
September 30, 2008
Moviegoers beware: the popcorn you munch during the show probably will not be perfectly popped.
A Manhattan civil court judge offered that warning last week as he ruled that an insurance broker who broke a tooth on an unpopped kernel while watching a movie at the AMC-Lincoln Square Cinema could not recoup dental costs of more than $1,000 from the theater.
In Kaplan v. American-Multi Cinema Inc., S.C. 1773/08, Manhattan Civil Court Judge Matthew F. Cooper chronicled in a four-page decision the frustration of popcorn makers who try to attain popping perfection. "Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process."
Insurance broker Steve Kaplan purchased the "freshly popped" bag of popcorn on Sept. 17, 2007, before a showing of "Superbad," a movie recounting the alcohol-fueled adventures of two high school seniors.
About midway through the bag, Kaplan bit into a hard object, which proved to be an unpopped or partially popped kernel. Twenty minutes later, the broker, no longer able to endure a toothache or the "terrible" movie, left the theater.
His dentist later confirmed that Kaplan had fractured his tooth on the unpopped kernel. After forking over $1,250 for restorative work, the insurance broker, who had expected the theater to "remove the offending kernels ... or at least notify patrons of the dangers of encountering them," asked the theater to cover his dental costs.
But at trial, the theater's manager testified that despite its use of a slotted popcorn scoop designed to remove unpopped kernels, the cinema could not promise patrons that all kernels would be popped.
Judge Cooper agreed that Kaplan's expectations were unreasonable.
Traditionally, the judge explained, New York allowed consumers to recover for dental damage resulting from objects found in food, including a metal game tag in a baked brook trout and a walnut shell in a "nutted cheese" sandwich.
But, citing the New York Appellate Division, 2nd Department, case of Vitiello v. Captain Bill's Restaurant, 191 AD2d 429 (1993), which involved a bony fish fillet, Cooper noted that the "foreign/natural test has fully given way to the reasonable expectation doctrine."
"Anyone who has ever made fresh popcorn ... soon learns the bitter truth that the final product is almost always marred by the presence of unpopped, partially popped or burnt kernels," the judge wrote.
Until the invention of a "new strain of popping corn," moviegoers might want to either carefully nibble the snack or "settle for something else from the concession stand, like those giant-sized boxes of Raisinets or Milk Duds," Cooper advised.
"But then again, aren't Milk Duds known to pull out your fillings?" the judge asked in concluding that Kaplan should have "reasonably anticipated" the presence of an unpopped or partially popped kernel in his snack.
According to the Web site of the nation's Popcorn Board, "good popcorn should provide at least 98 percent popped kernels with well under two percent 'spinsters' or unpopped kernels."
Kaplan appeared pro se.
American Multi-Cinema Inc. was represented by Emilio F. Grillo of Ahmuty Demers & McManus.
A Manhattan civil court judge offered that warning last week as he ruled that an insurance broker who broke a tooth on an unpopped kernel while watching a movie at the AMC-Lincoln Square Cinema could not recoup dental costs of more than $1,000 from the theater.
In Kaplan v. American-Multi Cinema Inc., S.C. 1773/08, Manhattan Civil Court Judge Matthew F. Cooper chronicled in a four-page decision the frustration of popcorn makers who try to attain popping perfection. "Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process."
Insurance broker Steve Kaplan purchased the "freshly popped" bag of popcorn on Sept. 17, 2007, before a showing of "Superbad," a movie recounting the alcohol-fueled adventures of two high school seniors.
About midway through the bag, Kaplan bit into a hard object, which proved to be an unpopped or partially popped kernel. Twenty minutes later, the broker, no longer able to endure a toothache or the "terrible" movie, left the theater.
His dentist later confirmed that Kaplan had fractured his tooth on the unpopped kernel. After forking over $1,250 for restorative work, the insurance broker, who had expected the theater to "remove the offending kernels ... or at least notify patrons of the dangers of encountering them," asked the theater to cover his dental costs.
But at trial, the theater's manager testified that despite its use of a slotted popcorn scoop designed to remove unpopped kernels, the cinema could not promise patrons that all kernels would be popped.
Judge Cooper agreed that Kaplan's expectations were unreasonable.
Traditionally, the judge explained, New York allowed consumers to recover for dental damage resulting from objects found in food, including a metal game tag in a baked brook trout and a walnut shell in a "nutted cheese" sandwich.
But, citing the New York Appellate Division, 2nd Department, case of Vitiello v. Captain Bill's Restaurant, 191 AD2d 429 (1993), which involved a bony fish fillet, Cooper noted that the "foreign/natural test has fully given way to the reasonable expectation doctrine."
"Anyone who has ever made fresh popcorn ... soon learns the bitter truth that the final product is almost always marred by the presence of unpopped, partially popped or burnt kernels," the judge wrote.
Until the invention of a "new strain of popping corn," moviegoers might want to either carefully nibble the snack or "settle for something else from the concession stand, like those giant-sized boxes of Raisinets or Milk Duds," Cooper advised.
"But then again, aren't Milk Duds known to pull out your fillings?" the judge asked in concluding that Kaplan should have "reasonably anticipated" the presence of an unpopped or partially popped kernel in his snack.
According to the Web site of the nation's Popcorn Board, "good popcorn should provide at least 98 percent popped kernels with well under two percent 'spinsters' or unpopped kernels."
Kaplan appeared pro se.
American Multi-Cinema Inc. was represented by Emilio F. Grillo of Ahmuty Demers & McManus.
