concurring in part and dissenting in part.
I concur with the judgment of reversal on the negligence and loss of consortium claims but disagree with the analysis of the majority, which misapprehends some issues of fact and law. I respectfully dissent from the reversal of summary judgment on the breach of warranty claim.
*5021. Regarding facts.
(a) The majority’s closing comment that a jury would be authorized to determine the condom was intentionally or maliciously placed there by an employee is unsupported by the record. Chambley and her husband repeatedly represented in the court below that they did not allege any employee of defendant intentionally or maliciously put the condom in the salad; they simply claimed negligence, i.e., that the offending substance found its way into the salad through an employee’s failure to assure the salad remained unadulterated. In its summary judgment order, the court expressly relied upon this representation in reaching its conclusion. The majority’s gratuitous suggestion to the contrary simply blurs the clear contours of the case and may confuse it in the trial court.
(b) Despite what the majority relates, Chambley was not immediately sick. “When did I get sick? It was when I got home.” Only after gathering up the salad in a container, returning home, and thinking about the incident did she become nauseated and vomit.
(c) The majority does not state that Chambley had the State Crime Lab test the salad, which test found no contaminants from the condom. Plaintiffs did not challenge nor attempt to contradict this finding.
2. Regarding law. OCGA § 26-2-26 (1) and (2) define adulterated food to include, inter alia, that which “contains any poisonous or deleterious substance which may render it injurious to health . . .” and that which “contains any added poisonous or added deleterious substance which is unsafe. . . .” OCGA § 26-2-22 (1) prohibits the sale of any food that is adulterated. OCGA § 51-1-23 expressly establishes civil liability: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.”
Chambley has shown evidence to support a potential jury finding of liability under this statute. Chambley used food which was “unwholesome” in that it contained the “defect” of being adulterated. OCGA § 51-1-23. It was adulterated because it “contained” a “deleterious substance which rendered it injurious to health” or an “added deleterious substance which is unsafe.” OCGA § 26-2-22 (1), (2). In 1863, if not before, the legislature established the public policy that negligent sellers of such “provisions” would be liable civilly for resulting “damages for such injury.” OCGA § 51-1-23. Chambley presented evidence she suffered psychic injury that manifested itself in physical symptoms.
The later judicial creation of the “impact rule” in Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 SE 901) (1892), which requires *503a physical impact resulting in a physical injury, did not involve adulterated food, and no subsequent case citing or refining this rule has attempted to apply it to OCGA § 51-1-23 or to adulterated foods. See Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665-666 (2) (A) (386 SE2d 146) (1989). At least five factors indicate that the legislature did not intend the “impact rule” to apply to actions under OCGA § 51-1-23.
(a) OCGA § 51-1-23 does not limit the injury to that resulting from a physical impact. It does not preclude liability for injury where the bridge between the impact (“use”) and the injury was psychic, “psychic” meaning that the user saw the unwholesomeness or defect and, based on what she saw, ascribed such a repulsive or horrific meaning to it that it made her physically sick. It is the effect of the defect on the person who uses it for which the seller is liable, so long as the injury was proximately caused by the negligent act. That distinguishes Ford v. Whipple, 225 Ga. App. 276 (483 SE2d 591) (1997), which did not involve food.
(b) Nor does the statute limit the types of recoverable injuries to physical injuries and to mental injuries that follow physical injuries. The general language of the statute includes all injuries or damages resulting from the use of the defective food, including mental distress which results in physical symptoms.
(c) OCGA § 51-1-23 relates to the Georgia Food Act (OCGA § 26-2-20 et seq.), which sets standards for those items which constitute food, something that is taken into the body and so has great potential for harm to the body. The Act is now in the title covering food, drugs, and cosmetics, all products which are highly regulated because of their potential for harm to the human body.
(d) The legislature chose to give a broad definition to when “food shall be deemed to be adulterated.” OCGA § 26-2-26. Since OCGA § 26-2-26 (2) includes food which “bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of Code Section 26-2-27,"1 we must construe this to mean that there would be liability under OCGA § 51-1-23 from injury resulting from food which is not defective itself but which merely contains a defective item and is used. The term “deleterious” is not defined in the Georgia Food Act, but according to the dictionary means “hurtful, destructive, noxious, pernicious.” Webster’s Third New Inti. Dictionary, p. 596.
(e) The legislature provided for express statutory sanctions against those who sell such food. Statutory civil liability (indepen*504dent of common law), OCGA § 51-1-23; criminal liability, OCGA §§ 26-2-24 and 26-2-41; and allowing the commissioner to publish adverse court orders, OCGA § 26-2-39, are the teeth of the Act, designed to enforce the high standards set for protection of health. The statute even provides for injunctions. OCGA § 26-2-23.
The impact rule does not apply. Chambley’s negligence claim survives summary judgment, which means the husband’s derivative loss of consortium claim also survives.
3. The trial court should be affirmed with respect to the grant of summary judgment on the implied warranty of merchantability claim. The majority does not decide this issue but instead in effect remands the whole case for trial. This claim is a separate claim, not based on the cited statutes. “In order to recover on this warranty [Chambley] had to demonstrate that (1) it had been breached and (2) that [she] had sustained recoverable damages as the proximate result. [Cit.]” Teledyne Indus. v. Patron Aviation, 161 Ga. App. 596, 598 (2) (288 SE2d 911) (1982).
Defendant maintains that no warranty arose because Chambley did not pay for the salad, but “a warranty is implied upon a contract for sale and not solely upon the execution of the sale itself.” (Emphasis in original.) Fender v. Colonial Stores, 138 Ga. App. 31, 32 (1) (A) (225 SE2d 691) (1976). Just as a contract for sale arises when a grocery store patron places the goods in her shopping basket (even though she could return the goods to the shelf and not buy them — see id. at 33-34), so a contract for the sale of restaurant food arises upon placing the order (even though the order could be canceled). See Keaton v. A.B.C. Drug Co., 266 Ga. 385, 386 (1) (b) (467 SE2d 558) (1996) (“grasping the product and beginning to take the product from the shelf with the intent to purchase it” constitutes privity necessary for implied warranty); cf. Ray v. Deas, 112 Ga. App. 191, 192 (2) (144 SE2d 468) (1965) (restaurateur may be liable for breach of implied warranty of merchantability for serving food containing foreign substance that causes injury). Chambley presented evidence establishing the warranty and its breach.
Nevertheless, Chambley does not show recoverable damages caused by the breach. OCGA § 11-2-715 (2) (b) allows as damages in a breach of warranty action “[i]njury to person or property proximately resulting from any breach of warranty.” Such damages are considered the same as those allowed under common law. Alterman Foods v. G. C. C. Beverages, 168 Ga. App. 921, 923-924 (310 SE2d 755) (1983). The common law does not afford mental distress damages in breach of contract actions. Cheeley v. Henderson, 197 Ga. App. 543, 547 (2) (398 SE2d 787) (1990) (where only cause of action was suit on contract, court properly entered summary judgment on prayer for mental distress damages), rev’d on other grounds, 261 Ga. 498 (405 *505SE2d 865) (1991); Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 329 (3) (358 SE2d 855) (1987) (damages for mental pain and suffering “are not compensable in an ex contractu action in the absence of fraud”); see Woodward v. Naylor Motor Sales, 14 UCC Rep. Serv. (CBC) 1269, 1274-1275 (VI) (Mich. Dist. Ct. 1974) (damages for mental distress are not available in breach of warranty action).
Since this is all plaintiff claims, in that the physical aspects were simply manifestations of the psychic injuries, she cannot recover for breach of the implied warranty. Summary judgment was proper on this claim.
The trial court correctly granted summary judgment on the breach of warranty claim but erred as to the negligence and loss of consortium claims.
The Code says “22-2-27” but that is obviously a typographical error and should be “26-2-27.” There is no § 22-2-27; that chapter has to do with condemnation, and § 26-2-27 does designate what shall be considered “unsafe.”