Ma et al v. Bon Appetit Management Co.

Filing 34

Memorandum Opinion: Defendant's motion for summary judgment is granted. (Doc. No. 28 .) This case is dismissed. Judge Sara Lioi on 11/28/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

QIUSHA MA, et al.,

PLAINTIFFS,
v.

BON APPETIT MANAGEMENT CO.,

DEFENDANT.

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CASE NO. 1:17CV2056

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is defendant Bon Appetit Management Company’s (“Bon Appetit”)
motion for summary judgment (Doc. No. 28 [“Mot.”]). Plaintiffs filed their opposition (Doc. No.
30 [“Opp’n”]) and defendant filed a reply (Doc. No. 33 [“Reply”]). For the reasons discussed
herein, defendant’s motion for summary judgment is GRANTED.
I.

BACKGROUND
Plaintiff Qiusha Ma (“Ma”) is a tenured professor of Chinese at Oberlin College

(“Oberlin”) in Oberlin, Ohio. (Doc. No. 28-4 [“Ma Dep.”] at 380.1) Plaintiff Nengli Shi (“Shi”) is
Ma’s husband. (Id. at 381–82.) Oberlin contracted with defendant Bon Appetit to manage
Oberlin’s food service employees and food service program at Oberlin dining halls, including
Stevenson Dining Hall. (Doc. No 28-3 [“Mgmt. Agree.”]; 28-7 [“Krasnevich Dep.”] at 641.)

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All page number references are to the page identification number generated by the Court’s electronic docketing
system.

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On October 16, 2015, a moveable wall partition in Oberlin’s Stevenson Dining Hall came
off the track from which it was suspended from the ceiling. (Doc. No. 28-5 [“Nemeth Dep.”] at
516–18; Krasnevich Dep. at 649.) A Bon Appetit employee filed a maintenance request with
Oberlin’s maintenance staff to fix the broken wall partition. (Nemeth Dep. at 516–18; Krasnevich
Dep. at 649.) Members of Oberlin’s maintenance staff removed the broken wall partition and
leaned it against a permanent exterior wall in the rear corner of Stevenson Dining Hall. (Krasnevich
Dep. at 649.) As of the morning of November 6, 2015, the broken wall partition had not been fixed
and remained leaning against the rear exterior wall in Stevenson Dining Hall. (Id. at 650–51.)
On November 6, 2015, Ma went to Stevenson Dining Hall to have lunch with students in
the Chinese Language Program. (Ma Dep. at 392–93.) At some point that day, between morning
and lunch, an unknown individual moved the broken wall partition and propped it up next to other
moveable wall partitions in the cafeteria. (Krasnevich Dep. at 650–51.) Ma sat down at a table next
to where the broken wall partition had been propped against the other moveable wall partitions.
(Ma Dep. at 396–97.) A student sitting on the other side of the broken wall partition accidentally
hit the broken wall partition, causing it to fall onto Ma as she sat. (Krasnevich Dep. at 650–51.)
Ma sustained serious and permanent injuries. (Ma Dep. at 408–438.)
On October 2, 2017, plaintiffs filed their complaint against Bon Appetit. In their complaint,
Ma brought a claim for negligence and Shi brought a derivative claim for loss of consortium.
Following the completion of discovery, Bon Appetit filed the present motion for summary
judgment. Plaintiffs filed their opposition, and defendant filed a reply.

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II.

STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and

supported, it shall be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
An opposing party may not rely on allegations or denials in its own pleading; rather, by
affidavits or by materials in the record, the opposing party must set out specific facts showing a
genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or declarations filed in support of, or in
opposition to, a motion for summary judgment “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated.” Fed. R. Civ. P. 56(c)(4). A movant is not required to file affidavits or other
similar materials negating a claim on which its opponent bears the burden of proof, so long as the
movant relies upon the absence of the essential element in the pleadings, depositions, answers to
interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986).
In reviewing summary judgment motions, the Court must view the evidence in a light most
favorable to the nonmoving party to determine whether a genuine issue of material fact exists.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); White v.
Turfway Park Racing Ass’n, 909 F.2d 941, 943–44 (6th Cir. 1990), impliedly overruled on other
grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991).
A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination of whether
a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus,

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in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance
of the evidence that the [nonmoving party] is entitled to a verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to that party’s case and on which that
party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he trial court
no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of
material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989) (citing FritoLay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an
affirmative duty to point out specific facts in the record as it has been established that create a
genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992).
The nonmoving party must show “more than a scintilla of evidence” to overcome summary
judgment; it is not enough for the nonmoving party to show that there is some “metaphysical
doubt” as to material facts. Id.
III.

DISCUSSION
In its motion for summary judgment, Bon Appetit claims that Ma’s negligence claim must

fail because (1) Bon Appetit did not owe Ma a duty; (2) even if Bon Appetit did owe Ma a duty, it
did not breach any such duty; and (3) Ma’s negligence claim is barred by Ohio’s Worker’s
Compensation Act. Further, Bon Appetit claims that Shi’s derivative loss of consortium claim fails
as a matter of law because Ma’s negligence claim fails.
1. Negligence
Under Ohio law,2 to succeed on a negligence claim, plaintiff must prove: 1) the existence
of a duty; 2) breach of that duty; and 3) that the breach was the proximate cause of her injury. Asad

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The Court applies Ohio choice of law rules because the case was brought in federal court in Ohio pursuant to diversity
jurisdiction. Charash v. Oberlin Coll., 14 F.3d 291, 296 (6th Cir. 1994) (citing Klaxon Co. v. Stentor Elec. Mfg. Co.,

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v. Continential Airlines, Inc., 328 F. Supp. 2d 772, 781 (N.D Ohio 2004) (citing Hester v. Dwivedi,
733 N.E.2d 1161, 1164 (Ohio 2000)). The threshold question—the existence of a duty—is a
question of law for the Court to determine. Id. (citing Mussivand v. David, 544 N.E.2d 265, 270
(Ohio 1989)). A duty is a legal obligation for one person to act for the benefit of another person
due to the relationship between them. Dryer v. Flower Hosp., 383 F. Supp. 2d 934, 942 (N.D. Ohio
2005).
Nonfeasance or Misfeasance
Negligence actions may be premised on either acts of omission (nonfeasance) or acts of
commission (misfeasance). Asad, 328 F. Supp. 2d at 782. Ohio law recognizes the distinction.
Estates of Morgan v. Fairfield Family Counseling Ctr., 673 N.E.2d 1311, 1319 & n.2 (Ohio 1997).
Nonfeasance usually involves a special relationship and the “failure to do an act that a person is
under a duty to do and that a person of ordinary prudence would have done under the same or
similar circumstances, or the failure to take action to protect another from harm.” Asad, 328 F.
Supp. 2d at 782 (citing 57 AM. JUR.2D Negligence § 13). “[M]isfeasance, on the other hand, arises
from ‘the improper doing of an act that a person might lawfully do or active misconduct that causes
injury to another.’” Id. (citing 57 AM. JUR.2D Negligence § 13).
Put another way, Ohio law imposes a duty on everyone to refrain from active misconduct
that causes an injury to another, but it does not impose a general duty to take affirmative action to
aid or protect another. Estates of Morgan, 673 N.E.2d at 1319. An affirmative duty to aid or protect
another only arises when a “special and definite relationship” exists between the parties. Jackson
v. Forest City Enters., Inc., 675 N.E.2d 1356, 1358 (Ohio Ct. App. 1996). Examples of special and

313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941)). Further, Ohio choice of law rules direct the Court to apply
Ohio tort law to the instant action. See id. at 296–99.

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definite relationships include: (1) common carrier and its passengers, (2) innkeeper and guests, (3)
possessor of land and invitee, (4) custodian and individual taken into custody, and (5) employer
and employee. Id.
Here, there is no evidence that Bon Appetit actively created the harm that led to Ma’s
injury, and Ma does not argue that Bon Appetit did. (Mot. at 250 ([A]n unknown individual or
individuals moved the broken wall partition . . . and leaned it up against a wall partition that was
properly attached to the ceiling.”); Opp’n at 788 (“[I]t remains unknown who moved the wall
partition on November 6, 2015 to the position from which it fell.”).) Thus, Ma advances her
negligence claim based on nonfeasance. As such, Ma must first establish the existence of a special
and definite relationship.
Landowner-Invitee Relationship
Ma alleges a landowner-invitee relationship existed between the parties at the time of the
incident. Bon Appetit posits that no such relationship existed because Bon Appetit did not own the
dining hall, did not lease the dining hall, and otherwise did not exercise any control over the
premise of the dining hall.
Under Ohio law, a plaintiff’s status on a defendant’s premises determines the scope of the
legal duty owed (trespasser, licensee, or invitee). Pelland v. Wal-Mart Stores, Inc., 282 F. Supp.
3d 1019, 1023 (N.D Ohio 2017) (citing Shump v. First Cont’l-Robinwood Assocs., 644 N.E.2d
291, 294 (Ohio 1994)). As defined by Ohio law, a business invitee is a person who is on the
premises of another by invitation, express or implied, for some purpose which is beneficial to both
persons. Light v. Ohio Univ., 502 N.E.2d 611, 613 (Ohio 1986).
Here, the parties do not dispute that Ma was a business invitee in Stevenson Dining Hall at
the time of the incident. (Opp’n at 784 (citing the business invitee premise liability standard as the

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appropriate legal standard in this case); Mot. at 251 (same).) She was present to purchase and eat
lunch in the dining hall. Therefore, the Court will analyze Ma’s claim under business invitee case
law.
Sufficient Control of Premises
Under Ohio law, a land possessor or occupier owes business invitees on their premises a
duty of “ordinary care.” Dryer, 383 F. Supp. 2d at 942. “Ordinary care” means that the land
possessor or occupier is required to maintain the premises in a safe condition, eliminating any
unreasonable risks of harm to invitees. Id.
In many cases, the land possessor or occupier is also the owner of the premises. However,
where a party other than the owner possesses the premises, the possessor or occupier, and not the
owner, owes the applicable legal duty to the entrant. Shump, 655 N.E.2d at 295. For the possessor
or occupier to owe a legal duty instead of the true owner, the possessor or occupier must have
sufficient control of the premises. Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 704 (Ohio
1995) (“It is fundamental that to have a duty to keep premises safe for others one must be in
possession and control of the premises.”); Fryberger v. Lake Cable Recreation Ass’n, 533 N.E.2d
738, 741 (Ohio 1988) (“Liability for injuries arising from the defective condition of property is an
incident to occupation or control of the property.”). Sufficient control is required as a predicate to
liability because the one with control of the premises is in the best position to diminish danger to
invitees. Simpson, 652 N.E.2d at 702. As Ohio courts have held consistently, the test for whether
a land occupier possesses sufficient control is whether the occupier has “the power and right to
admit people to the premises and to exclude people from it.” See, e.g., id. at 704; Wills v. Frank
Hoover Supply, 497 N.E.2d 1118, 1120 (Ohio 1986); Payne v. Ohio Performance Acad., Inc., 98
N.E.3d 1078, 1086 (Ohio Ct. App. 2017). Sufficient control can be held jointly by two parties, so

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long as both parties satisfy the test to admit and exclude. Fryberger, 533 N.E.2d at 741 (finding
the lake owners’ association liable because the association had, among other factors, at least some
power and right to admit or exclude).
A common instance where a land occupier’s duty replaces a landowner’s duty occurs in
cases of commercial leases. In Ohio, a commercial lessee (tenant) becomes responsible for the
condition of premises which they control under the terms of the lease. Hendrix v. Eighth & Walnut
Corp., 438 N.E.2d 1149, 1151 (Ohio 1982) (finding lessee liable for hazards on premises because
lease transferred occupation and control of leased premises to lessee). The commercial lessor
(landlord) is liable for hazards on the leased premises only if the lessor retains some control of the
premises. Stackhouse v. Close, 94 N.E. 746 (Ohio 1911) (lessor retained control over the premises
by the terms of the lease). Again, as the premise liability case law for leased commercial premises
reinforces, the question of legal duty focuses on control of the premises because the controller is
in the best position to remedy hazards. “Without evidence of control, the ‘lessor is not liable for
injuries to a third party.’” Washburn v. Lawrence Cty. Bd. of Comm’rs, 720 F.3d 347, 352 (6th
Cir. 2013) (applying Ohio law) (quoting Frank Hoover Supply, 497 N.E.2d at 1120).
Here, Ma contends that Bon Appetit had sufficient control over Stevenson Dining Hall
because it had the power and the right to admit persons to or exclude persons from the dining hall.
Specifically, Ma contends that Bon Appetit exercised control to admit or exclude persons because
its employees had keys to Stevenson Dining hall, opened the doors each morning, closed the doors
each night, could exclude trespassers, reserved rooms for diners, and could close the dining hall if
there was a dangerous condition present. (Opp’n at 785–86.)
The fact that Bon Appetit employees were tasked with opening the doors each morning
and closing the doors each night does not amount to the power and the right to admit or exclude.

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Bon Appetit employees were simply following instructions from Oberlin. Oberlin sets the hours
of Stevenson Dining Hall. (Mgmt. Agree. at 274, 294 (listing the hours of operation for each dining
hall and directing Bon Appetit to provide services during those hours).) As part of its agreement
with Oberlin, Bon Appetit’s employees opened and closed the doors at the Oberlin-determined
time each day. (Krasnevich Dep. at 647.)
Moreover, Oberlin determined who had access to the cafeteria by requiring payment with
an Oberlin-approved payment method. (Mgmt. Agree. at 289 (listing ways to pay for entrance to
Stevenson Dining Hall); Krasnevich Dep. at 656.) Further, Oberlin employees checked for
acceptable methods of payment at the entrance of Stevenson Dining Hall. (Krasnevich Dep. at
656.) To the extent that anyone attempting to enter the Stevenson Dining Hall was admitted or
denied, it was determined by Oberlin and Oberlin employees.
It is true that persons wishing to reserve a portion of Stevenson Dining Hall for a private
event contacted Bon Appetit for the reservation. (Doc. No. 28-6 [“Klancar Dep.”] at 593–94.)
However, Bon Appetit used Oberlin’s room reservation system to determine availability and
Oberlin employees prepared the cafeteria for the private event, specifically by moving the wall
partitions to create a private, reserved space. (Klancar Dep. at 593–96.) Again, to the extent that
persons were able to reserve Stevenson Dining Hall for a private event, it was at the discretion of
availability that Oberlin listed in their room reservation system and it was Oberlin that created the
private space.
Lastly, Ma contends that Bon Appetit had the power to exclude persons from the cafeteria
if there was a dangerous condition present. (Opp’n at 786.) To support her claim, Ma cites to the
deposition of Mark Sustarsic (“Sustarsic”), a Bon Appetit manager assigned to Stevenson Dining
Hall at the time of the incident. (Id.) However, review of Sustarsic’s deposition and other relevant

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portions of the record reveal Ma’s claim is misleading. Sustarsic was the Bon Appetit manager
who placed a work order on November 8, 2014, with Oberlin’s maintenance staff to fix the atissue wall partition. (Doc. No. 28-8 [“Sustarsic Dep.”] at 707.) His deposition provides:
Q: Well, what did you do to make sure that the room was safe between the time that
you submitted the work order and the time that it was going to be repaired?
A: I reported the work order need.
Q: Okay. But in the meantime you just left the wall hanging there by the one peg?
A: There was nothing else I could do.
Q: Could you have closed the room, for example, while you were waiting for the
moveable wall to be fixed?
A: Possibly.
(Sustarsic Dep. at 708 (emphasis added).)
Elsewhere in the record, the fact that all Bon Appetit employees could do was submit a
work order to Oberlin—even in an emergency—is reemphasized. John Klancar, Bon Appetit’s
director of operations at Oberlin, reveals in his deposition when asked about emergency work
orders:
Q: If you noticed something that in your view in a dining room was dangerous and
jeopardized the safety of the patrons, you would immediately contact Oberlin
College to bring that to their attention, wouldn't you?
...
A: Yeah, I mean if, like I said, if it's gut-shot. If I saw something that I felt was
really unsafe and could do instant damage right then and there, I'd pick up the
phone and call Oberlin College—or call Facilities.
...
A: And then it would be out of my hands.
(Klancar Dep. at 575–76 (emphasis added).)

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If Bon Appetit observed a dangerous condition in Stevenson Dining Hall, they had to notify
Oberlin, who would dispatch their maintenance staff to make necessary remedies. (Mgmt. Agree.
at 277; Klancar Dep. at 553–54.) If Bon Appetit determined the condition was an emergency,
Oberlin directed Bon Appetit to submit an emergency maintenance request. (Klancar Dep. at 575–
76.) There is no evidence that Bon Appetit had authority to exclude persons from Stevenson Dining
Hall if they deemed a condition dangerous. There is no evidence in the record that Bon Appetit
could, or ever did, exclude persons from Stevenson Dining Hall because of a dangerous condition.
The management agreement further reveals that Bon Appetit lacked any power or right to
admit or exclude certain persons from Stevenson Dining Hall. The management agreement states,
“Oberlin authorized representatives shall have access to all food service areas at all times.”
(Mgmt. Agree. at 273 (emphasis added).) And that, “Oberlin may make reasonable regulations
with regard to the use and occupancy of the Premises with which Bon Appetit will comply as
soon as possible after written notice.” (Id. (emphasis added).) Oberlin decided who was admitted
to Stevenson Dining Hall, not Bon Appetit.
Bon Appetit could not even decide which of its own employees had access to Stevenson
Dining Hall without Oberlin’s input. Pursuant to the management agreement, Oberlin participated
in the hiring of Bon Appetit’s management and administrative office employees. (Id. at 276.)
To combat Bon Appetit’s lack of control over admittance and exclusion, Ma contends that
the Ohio Supreme Court’s decision in Fryberger stands for the proposition that the right to admit
or exclude persons from the premises is just one factor in determining whether an occupier had
sufficient control. (Opp’n at 786). However, Ma does not cite to any Ohio case law that interprets
Fryberger this way. Contrarily, Ohio courts, and the Sixth Circuit, consistently have construed
Fryberger as accepting that more than one person or entity can control premises, while reinforcing

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the proposition that control requires the power and the right to admit persons to or exclude persons
from the premises. Currier v. Penn-Ohio Logistics, 931 N.E.2d 129, 134-35 (Ohio Ct. App. 2010)
(discrediting any argument that the right to admit and exclude is not the sole test for control);
Monnin v. Fifth Third Bank of Miami Valley, N.A., 658 N.E.2d 1140, 1151 (Ohio Ct. App. 1995)
(“Fryberger announces no new rule on control different from that in other cases.”); Washburn,
720 F.3d at 352 (“The key to [the control] test is whether the lessor has the ability to admit or
exclude people from the premises because ‘such rights are attributes of ownership.’” (quoting
Cooper v. Roose, 85 N.E.2d 545, 549 (Ohio 1949))). Here, Bon Appetit did not share any power
or any right to admit persons to or exclude persons from Stevenson Dining Hall.
Even if this Court accepted Ma’s interpretation of Fryberger, Bon Appetit displays no other
indicia of control over Stevenson Dining Hall. While Bon Appetit was physically present in
Stevenson Dining Hall to manage the food service program and the Oberlin food service
employees, its presence does not amount to possession and control over Stevenson Dining Hall.
Pursuant to the management agreement, Oberlin retained responsibility for the condition of the
Stevenson Dining Hall premises and the condition of the equipment therein. (Mgmt. Agree. at
277.) Moreover, Bon Appetit did not own anything in Stevenson Dining Hall. (Id.) All the
equipment, tables, chairs, wall partitions, et cetera belonged to Oberlin.3 (Id.)
It is true that Bon Appetit was required to inspect the dining hall every day to ensure that
the dining hall was safe and sanitary. (Opp’n at 784; Mgmt. Agree. at 277.) However, Bon Appetit
was not responsible for completing any maintenance or repairs in the dining hall. (Mgmt. Agree.
at 277.) As discussed, if a Bon Appetit employee noticed something in need of repair, they were

It is true that Bon Appetit possessed and occupied offices within Stevenson Dining Hall. (Opp’n at 786.) However,
the furniture and equipment within those offices belonged to Oberlin. (Mgmt. Agree. at 279.) Moreover, the incident
did not take place within Bon Appetit’s offices, and any possession or control of the offices does not mean Bon Appetit
possessed or controlled the cafeteria area of Stevenson Dining Hall.
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instructed to notify the Oberlin maintenance staff for assistance. (Mgmt. Agree. at 277; Klancar
Dep. at 553–54.) Oberlin maintenance staff was responsible for remedying any issue. (Mgmt.
Agree. at 277.)
Further, this case does not involve a lessee’s or lessor’s duty to protect business invitees.
To be sure, Bon Appetit did not lease Stevenson Dining Hall from Oberlin. In fact, the management
agreement specifically stated that the management contract was not a lease of any kind. (Mgmt.
Agree. at 273.) Specifically, the management agreement provided that, “[n]either this Agreement
nor Bon Appetit’s occupancy of the [p]remises [Stevenson Dining Hall] shall constitute a lease or
license of all or a portion of the [p]remises to Bon Appetit.” (Id.) Bon Appetit did not have control
over Stevenson Dining Hall as a lessee.
Examining all the facts in the light most favorable to the nonmoving party, there is no
evidence to support a finding that Bon Appetit had the power and the right to admit persons to or
exclude persons from Stevenson Dining Hall. Thus, there is no evidence to support a finding that
Bon Appetit possessed the requisite level of control necessary to render it liable as a land occupier
to business invitees at Stevenson Dining Hall. As such, there is no landowner-invitee relationship
between Bon Appetit and Ma.
No General Affirmative Duty To Protect
Absent a landowner-invitee relationship, there is no special and definite relationship
between Bon Appetit and Ma. Absent any special and definite relationship between Ma and Bon
Appetit, Bon Appetit does not owe Ma any affirmative duty to protect her from a partition wall
falling on her in a cafeteria. Thus, Ma’s negligence claim based on nonfeasance fails because there

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is no special or definite relationship between her and Bon Appetit, and, as such, Bon Appetit did
not owe Ma any duty of protection from the falling wall partition.
2. Ohio Workers’ Compensation Act
Because the Court grants defendant’s motion for summary judgment on the basis that Bon
Appetit did not owe Ma any affirmative duty, the Court need not, and will not, address whether
Ma’s negligence claim is barred by Ohio’s Workers’ Compensation Act.
3. Derivative Loss of Consortium Claim
Under Ohio law, “loss of consortium claims are derivative actions which depend on the
existence of a primary cause of action.” Loomis v. Medtronic, Inc., No. 1:04CV0499, 2005 WL
1828763, at *6 (N.D. Ohio Aug. 1, 2005) (citing Gearing v. Nationwide Ins. Co., 665 N.E.2d 1115,
1120 (Ohio 1996)). Because this Court grants Bon Appetit’s motion for summary judgment on
Ma’s negligence claim, Shi’s derivative loss of consortium claim must also be decided as a matter
of law in Bon Appetit’s favor. As such, Shi’s loss of consortium claim fails.
IV.

CONCLUSION
For the reasons set forth herein, defendant’s motion for summary judgment is GRANTED.

This case is dismissed.
IT IS SO ORDERED.
Dated: November 28, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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