Addressing a case involving a claim of negligence based on “deleterious” food, the Louisiana Fifth Circuit Court of Appeal stated that a restaurant was entitled to judgment as a matter of law when the plaintiff had not met the causation and duty elements of her claim. In this opinion, the court looked at the plaintiff’s “ingestion” of the food at issue and whether medical evidence supported a finding that her alleged injuries resulted from consuming the spoiled food. Relying on Louisiana law and precedent, the court found that the plaintiff, in this case, had not met her burden of proof.
During the early morning on Sunday, the plaintiff pulled through a fast-food drive-in and ordered a sandwich and a soda drink. Unfortunately, as she drank, she noticed a funny taste and discovered a live insect swimming in her drink.
The plaintiff continued to attend her social obligations but felt nauseous and reported to the emergency room, where the tests came back normal. She then was prescribed medicine and discharged to follow up with her primary care physician.
A few days later, she was prescribed anti-nausea medicine. Her doctor later recommended psychological treatment because the incident had resulted in psychological trauma, making it hard for her to sleep and leading to anxiety. The plaintiff’s symptoms caused her to miss work and school.
After a gastroenterologist examined her stomach, he determined that her organs were normal and that she had a bacterium she likely contracted in childhood. Her primary care doctor opined that she likely had the bacterium before the incident at the drive-through.
The plaintiff sued the fast food company and its insurer, alleging that she suffered physical harm and emotional distress from drinking her soda. The fast food company moved for summary judgment on the ground that the plaintiff could not show the element of causation. In other words, they argued she could not prove drinking the soda caused her injuries.
The plaintiff then added the pest control company that served the fast food restaurant and the employee who provided the services to the specific fast food restaurant. The court granted the motion for summary judgment on the grounds that there was no proof that the food was “deleterious” and that the bug itself had not been ingested.
The court also noted that there was no precedent stating a restaurant had a duty to protect a consumer from her own “emotional distress to her own negative perceptions.” After granting the summary judgment motion, the court dismissed the plaintiff’s claims with prejudice. The plaintiff appealed.
On appeal, the court stated that since there had not been any facts in dispute, the summary judgment motion was appropriate, and the restaurant had been entitled to summary judgment. The court stated the medical evidence did not show that the plaintiff had been exposed to a deleterious substance, and her emergency room tests were normal.
The court also stated that the evidence regarding causation showed that the plaintiff’s symptoms had not been caused by drinking the soda. The court rejected the plaintiff’s contention that the incubation period for food-borne illness was a disputed fact.
Turning to the five elements of a negligence claim in a deleterious food case, under Louisiana law, the court stated that a plaintiff must show proof that the defendant had a duty, proof that the conduct did not conform to this standard, proof that the conduct caused the plaintiff’s injuries, proof that the conduct was a legal cause of the injuries, and proof of damages.
The cause-in-fact element here required that the plaintiff show that the injury was caused by her consumption of the food. This meant showing that more likely than not, deleterious food caused the plaintiff’s injury. The court stated that whether a food is deleterious can be inferred from circumstances and does not require an analysis of the food.
Typically, the court stated, Louisiana courts require the plaintiff to have actually ingested or consumed the deleterious food. The court then cited a Fourth Circuit Court of Appeal case that overturned a ruling in favor of a defendant grocery store when the plaintiff’s injuries were caused by smelling deleterious meat purchased from the store. The appellate court found that the plaintiff could recover damages for the injury to her throat due to forceful vomiting caused by the smell (and sight) of the rotten meat.
Here, the court stated, the plaintiff could not prove that consuming deleterious food caused her injuries. She had not ingested the food, and there had not been a showing that her soda was deleterious, despite the presence of the bug. The court stated that the plaintiff’s knowledge that she consumed a drink with an insect did not create a condition of deleterious food.
Regarding the duty of the restaurant to serve food free of injurious substances, the court asked whether this duty reaches customers who are harmed by an emotional response to the consumption of non-deleterious food. Precedent indicates that there is not a duty on the part of restaurants to protect their consumers from emotional responses to their own negative perceptions.
The court noted that policy considerations state that a defendant’s scope of duty and liability must be foreseeable, such that it is a foreseeable consequence of breaching a duty of care. Restaurants are not responsible for food that is not proven to be deleterious but harms a plaintiff emotionally because of their subjective perception of the food. Here, the restaurant was entitled to judgment as a matter of law because the plaintiff could not prove the causation or duty element of her negligence claim.
The court affirmed the judgment in favor of the fast food restaurant.
The product liability attorneys at Lavis Law represent individuals throughout Louisiana in their claims for compensation following an accident in which they suffered injuries. Our office provides a free consultation. We can be reached by calling 866-558-9151 or using our online form.
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