Darryl Clark v. Darden Restaurants Inc, et al

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, VANASKIE and SHWARTZ, Circuit Judges. Total Pages: 8. Judge: AMBRO Authoring.

Case: 14-2810

Document: 003111973985

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Date Filed: 05/27/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-2810
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DARRYL CLARK
v.
DARDEN RESTAURANTS, INC.,
Trading as RED LOBSTER;
RED LOBSTER, INC., a subsidiary of Darden Restaurants, Inc.;
JOHN DOES, INC. 1-5, Fictitious Names;
JANE DOES 1-5, Fictitious Names; GMRI, INC.
Darden Restaurants, Inc., trading as Red Lobster;
Red Lobster, Inc. a subsidiary of Darden Restaurants, Inc.,
Appellants
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-11-cv-01056)
Magistrate Judge: Honorable Douglas E. Arpert
District Judge: Honorable Freda L. Wolfson
________________
Submitted Under Third Circuit LAR 34.1(a)
April 13, 2015
Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges
(Opinion filed : May 27, 2015)

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OPINION*
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AMBRO, Circuit Judge
“Sea food differently” Red Lobster advertises in its play on words. Appellee
Darryl Clark forever will. He was dining with a friend at the Lawrenceville, New Jersey
Red Lobster when, during the course of their meal, a server dropped a plate on their
table—causing the plate to shatter. Pieces of the plate punctured Clark’s eyes. The
physician who later operated on his eyes opined that a “glass foreign body” had damaged
his corneas. Clark sued Red Lobster for negligence.1
The evidence against the restaurant was damning. The server who dropped the
plate admitted that it “felt a little slippery” and “a little greasy,” and that he didn’t handle
it properly. With the evidence largely on his side, Clark moved for summary judgment
(on liability only), invoking the familiar tort doctrine of res ipsa loquitur (“the thing
speaks for itself”) reserved for cases where a factfinder can infer negligence from the
incident itself.
Not unexpectedly, the District Court granted Clark’s motion. In doing so, it
rejected outright Red Lobster’s suggestion, unsupported by evidence, that the dropped
plate was “only an accident.” The Court thought it “significantly more probable than
not” that the server’s mishap was a result of not exercising the appropriate level of care.
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1

The named defendant is Darden Restaurants, Inc.; Red Lobster is a subsidiary of
Darden. We call the defendant/Appellant Red Lobster for ease of reference.
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See Clark v. Darden Restaurants, Inc., No. 11-1056, 2013 WL 104052, at *4 (D. N.J.
Jan. 8, 2013). Thus, in light of the “unrebutted, competent evidence that the accident
resulted solely from [the server’s] conduct,” id., it concluded that Red Lobster breached
the duty it owed to Clark and was liable for the injuries he sustained on its premises. Id.
The Court also suggested that Clark “demonstrated that there is an absence of genuine
dispute to the claim that the broken plate caused [Clark’s] eye injuries.” Id. at *5.
The extent of damages was the sole issue left for trial. The jury returned a
$337,017 verdict in favor of Clark. Red Lobster appeals both the District Court’s grant
of summary judgment and a number of perceived mishaps at trial.2 It takes issue with:
(1) the Court’s application of res ipsa loquitur; (2) its jury charge on the issue of
damages; and (3) its (purported) decision to allow Clark to introduce evidence of his
outstanding student loan debt as a measure of recoverable damages. Addressing each
argument in turn, we find none persuasive.
Under the doctrine of res ipsa loquitur, a jury may infer that the defendant is liable
for negligence where (1) the incident at issue ordinarily shows negligence, (2) the cause
of the plaintiff’s injury was within the defendant’s exclusive control, and (3) there is no
indication that the plaintiff was at fault for his injuries. See Bornstein v. Metro. Bottling
Co., 139 A.2d 404, 408 (N.J. 1958). Red Lobster concedes that the latter two elements
are satisfied, but contends that Clark offered “no evidence” that the incident in
question—a dropped plate on a customer’s table—“bespeak[s] negligence.” Red Lobster

2

The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291. As did the District Court, we apply New Jersey law.
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Br. 10–11 . In its view, an incident connotes negligence only where the plaintiff offers
evidence that the injuries incurred couldn’t have occurred without negligence. See id. at
10 (arguing that Clark needed to, but didn’t, “put forth evidence that a plate cannot slip
from a server’s hand without negligence”). And because Clark didn’t offer any evidence
to that effect, the District Court erred in invoking the doctrine.
Red Lobster’s argument might have some force were its initial premise correct—
that an incident “ordinarily bespeaks [] negligence” only where it couldn’t have occurred
absent negligence. But the premise fails. An incident ordinarily appears negligent where
the probabilities fall in favor of negligence such that an inference of it is appropriate. See
Myrlak v. Port Auth. of N.Y. & N.J., 723 A.2d 45, 51 (N.J. 1999) (“res ipsa is available if
it is more probable than not that the defendant has been negligent”) (citation omitted).
Here the probabilities clearly do, as no reasonable, similarly situated server should have
handled the plate as the server did here. See Clark, 2013 WL 104052, at *4 (highlighting
the server’s testimony that “the plate felt ‘a little slippery’ and ‘a little greasy’”; that the
server “had only dropped objects less than ten times in his five years of experience”; and
that “he had never dropped a plate on a table or ever seen another server drop something
on a patron’s table”).
Failing that, Red Lobster offers a second reason to reverse: that the District Court
misapprehended the effect of holding that the three-pronged res ipsa loquitur test had
been satisfied. See Red Lobster Br. 11 (arguing that the District Court incorrectly held
that the application of the doctrine of res ipsa loquitur established Red Lobster’s
“negligence as a matter of law”). According to Red Lobster, the doctrine merely
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“permits an inference of negligence to be made by a jury that can satisfy a plaintiff’s
burden of proof and enable [him or her] to survive a motion to dismiss at the close of [his
or her] case.” Id. It does not require the more aggressive measure of taking the issue of
negligence away from the jury.
Although Red Lobster’s statement of the law is correct, it paints but a partial
picture. It neglects to mention that, to survive a motion for summary judgment, a
defendant must produce evidence to rebut an inference of negligence—which Red
Lobster did not do here. Red Lobster’s only rejoinder to the evidence Clark presented
was that the server could have accidentally rather than negligently dropped the plate. But
it is axiomatic that the “mere denial of negligence, in the face of a plaintiff’s prima face
case,” Mangual v. Berezinsky, 53 A.2d 664, 672 (N.J. Super 2012), cannot defeat a
summary judgment motion—especially where, as here, Clark “put forth ample
uncontroverted evidence demonstrating that [he] sustained injuries because of [the
server’s] breach of the duty of care,” Clark, 2013 WL 104052, at *5.3

3

Red Lobster also argues that the Court inappropriately took the issue of proximate
causation away from the jury. That is incorrect. Although the Court suggested that the
dropped plate caused Clark’s injuries, it reserved the question of damages for the jury.
See Clark, 2013 WL 104052, at *6. And, indeed, the jury was explicitly charged on
causation:
While you do not have to consider whether the Defendant was negligent
in this case, that’s already been decided, you do have to decide whether
the Defendant’s negligence was the proximate cause of the Plaintiff’s
injuries and the medical treatment he received before you can find that the
restaurant was responsible for the damages claimed by Mr. Clark.
J.A. 183a.
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We next address the arguments Red Lobster raises regarding the Court’s
instruction to the jury on the issue of damages and that Clark was allowed to introduce
evidence regarding his unpaid student loans. As to the former, Red Lobster argues that
the Court’s “jury charge regarding damages had the capacity to unfairly influence the
jury.” Red Lobster Br. 14. Specifically, it says that the following passage of the charge
was “highly prejudicial” because this “removed the issue of proximate cause as to
damages from the per view [sic] of the jury,” id.:
As you know, I’ve said it couple of times, you do not have to decide
issues of liability or fault. Your consideration only involves a
determination of the amount of damages to be awarded to Mr. Clark.
J.A. 184a.
Because Red Lobster didn’t object to the jury charge, we review for plain
error. That means we “reverse only if the trial court committed error that was
fundamental and highly prejudicial, such that the instructions failed to provide
the jury with adequate guidance, and the refusal to consider the issue would
result in a miscarriage of justice.” Alexander v. Riga, 208 F.3d 419, 426 (3d
Cir. 2000) (citations omitted).
That was far from the case here. As noted above, the Court specifically
instructed the jury on proximate causation. That it stated the jury’s job was
only to determine the amount of damages to award Clark doesn’t make it any
less true. As Clark appropriately responds, “the ‘amount of damages to be
awarded’ could have been zero dollars or it could have been a million dollars—
the Court never suggested one way or the other.” Clark Br. 48. Furthermore,
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the portion of the jury charge cited by Red Lobster was immediately followed
by the Court’s clarification that “the fact that I gave you these instructions on
damages should not be considered as suggesting any view of mine about the
issues of proximate cause or the amount of damages.” J.A. 185a.4
Red Lobster’s last argument is that Clark was improperly permitted to
present “unsubstantiated” evidence of outstanding student loan debt as a
measure of recoverable damages. Red Lobster Br. 16. That is, at trial counsel
to Clark told the jury that, as a result of his eye injuries, he was unable to find
meaningful employment to repay the $27,000 in student loans he incurred and
was thus unable to return to college. Clark testified that, when he tried to return
to school, he was not allowed to enroll in any classes because of his outstanding
debt. Concerned that the jury would consider the $27,000 unpaid debt as
damages, Red Lobster asked the Court for an instruction that the sum was not
an element of damages. The Court’s decision not to do so, per Red Lobster,
was an abuse of its discretion.
We disagree. Putting aside whether Red Lobster even objected to Clark’s
testimony about his student loan debt, the District Court’s reluctance to instruct

4

Red Lobster not only failed to object to the jury instructions it now challenges, it in fact
provided them. Indeed, the very damages-related language it cites as prejudicial comes
from its own proposed charge. Compare J.A. 184a (damages jury instruction read by the
District Court) with Supp. App. 13 (Red Lobster’s proposed damages jury instruction).
Absent extraordinary circumstances, this alone could provide a basis to reject Red
Lobster’s objection. See Lesende v. Borrero, 752 F.3d 324, 336 (3d Cir. 2014)
(observing that reversal for an erroneous jury instruction “should be exercised sparingly
and should only be invoked with extreme caution in the civil context”)
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the jury as Red Lobster requested was far from reversible error, much less an
abuse of discretion. For starters (and as Clark argues), any mention of the loans
was only in connection with the “impediment that they represented to his return
to school,” and it is beyond dispute that “[t]he manner in which an injury affects
an individual’s life is proper testimony for trial.” Clark Br. 52. Second, the
District Court never instructed the jury that the $27,000 debt should be
considered as a measure of damages. Indeed, in instructing the jury on damages
the Court made no mention of Clark’s educational pursuits. In this context, and
because we generally presume that the jury will follow a court’s instructions,
see Penry v. Johnson, 532 U.S. 782, 799 (2001), we can only conclude that the
District Court did not err, much less abuse its discretion, in rebuffing Red
Lobster’s request to strike evidence regarding Clark’s student loans.
*

*

*

For these reasons, we affirm.

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