The Massachusetts Appeals Court threw out a lawsuit yesterday by a man who said he had hurt a tooth when he bit down on a foreign object in a McDonald’s hamburger but was unable to find the object afterwards.
Daniel L. Burns Jr. had said he bought a double cheeseburger on Oct. 20, 2006 at a McDonald’s restaurant on Route 44 in Raynham and began to eat it as he drove, the court said.
As he was entering Route 44, he said, he narrowly avoided an accident and pushed the remaining third of the burger into his mouth so he could grab the steering wheel.
He said he felt pain and noticed something “hard and bumpy,’’ about the size of a pea, feeling it with his tongue, according to the court.
Burns, however, never saw the object, he said. He spit the food in his mouth into a napkin, but could not find the object and said he must have either swallowed it or lost it during the “traffic emergency,’’ the court said.
In order to successfully sue, the court said, Burns had to prove that his burger contained an injury-causing object that originated from McDonald’s, and he had to prove that a consumer would not have reasonably expected to find such an object in the sandwich.
“Burns cannot make the necessary showings on the facts of record here,’’ the court said.
“Because Burns never saw the object, was unable to describe it in any detail, and could not determine what it was, Burns was ill positioned to ask the jury to apply the reasonable expectations test,’’ the court said.
“Whether the alleged cause of injury was a foreign object in the cheeseburger, something inherent to the product such as gristle, or an object from within Burns’s own mouth such as a piece of filling or piece of Burns’s own tooth was entirely a matter of speculation,’’ the court said.