Cordero-Carmona et al v. South America Restaurants Corp. et al

Filing 34

OPINION AND ORDER granting 29 MOTION for Summary Judgment filed by South America Restaurants Corp. Signed by Judge Salvador E Casellas on 3/31/2009.(THD)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO C IN D Y CORDERO CARMONA, et al Plaintiffs v. Civil No. 07-1314 (SEC) S O U T H AMERICAN RESTAURANTS C o rp ., et al D e f e n d a n ts

O P IN I O N AND ORDER P e n d in g before the Court is Defendant, South American Restaurants Corp.'s (SARC) M o tio n for Summary Judgment (Docket # 29). Plaintiff has not replied to the aforementioned m o tio n . As such, it shall be deemed unopposed. Upon consideration of SARC's filing, the e v id e n c e in the record, and the applicable law, Defendant's Motion for Summary Judgment is GRANTED. S t a n d a r d of Review T h e Court may grant a motion for summary judgment when "the pleadings, depositions, a n sw e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED.R.CIV.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248(1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., In c . v. Mita Copystar Am., Inc., 42 F.3d 668 (1 st Cir. 1994). At this stage, the court examines th e record in the "light most favorable to the nonmovant," and indulges all "reasonable inf ere n ce s in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1 st C i r . 1994). Summary judgment is only available in the absence of a genuine issue as to the m a te ria l facts of the case. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004).

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1 st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be re so l v e d in favor of either party and, therefore, requires the finder of fact to make `a choice b e tw e e n the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 1 1 2 , 116 (1 st Cir. 2005)(quoting Garside, 895 F.2d at 48 (1 st Cir. 1990)). In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 4 0 7 F.3d 11, 15 (1 st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1 st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once th e party moving for summary judgment has established an absence of material facts in dispute, an d that he or she is entitled to judgment as a matter of law, the `party opposing summary ju d g m e n t must present definite, competent evidence to rebut the motion.' Méndez-Laboy v. A b b o t Lab., 424 F.3d 35, 37 (1 s t Cir. 2005) (quoting from Maldonado-Denis v. Castillo R o d ríg u e z , 23 F.3d 576, 581 (1 st Cir. 1994). "The non-movant must `produce specific facts, in s u ita b le evidentiary form' sufficient to limn a trial-worthy issue. . . . Failure to do so allows the s u m m a ry judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 924 F .2 d 355, 358 (1 st Cir. 1991) (warning that "the decision to sit idly by and allow the summary ju d g m e n t proponent to configure the record is likely to prove fraught with consequence."); M e d in a -M u ñ o z , 896 F.2d at 8, quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st Cir. 1989) (holding that "[t]he evidence illustrating the factual controversy cannot be c o n je c tu ra l or problematic; it must have substance in the sense that it limns differing versions o f the truth which a fact finder must resolve.").

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 If the opposing party "does not respond, summary judgment should, if appropriate, be e n te re d ." FED. R. CIV. P. 56(e)(2). These rules "are meant to ease the district court's operose ta sk and to prevent parties from unfairly shifting the burdens of litigation to the court." CabánH e rn á n d e z v. Phillip Morris USA, Inc., 486 F.3d 1, 8(1 st Cir. 2007). When the parties ignore the L o ca l Rule, they do so at their peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 28 (1 st Cir. 2000). In the instant case, Plaintiffs failed to file an opposition to SARC's motion for summary jud g m en t. As a result, and per FED. R. CIV. P. 56(e)(2), Plaintiff's motion is deemed unopposed. T h u s, the Court will deem as admitted those facts which are supported by the record. This s o lu tio n is consistent with Local Rule 56, and First Circuit precedent. See Philip Morris, 486 F .3 d at 7-8. Factual and Procedural Background O n July 20, 2003, Ruth Carmona ("Carmona") allegedly went to the "drive thru" window o f Church's Chicken ("Church's"), a fast food chain restaurant at Plaza Atlántico in Arecibo, P u erto Rico, and bought a meal for her granddaughter Stephanie Torrado Cordero ("Torrado"). D o c k e t #29, ¶ 1. The meal allegedly included a side order of mashed potatoes. Id. Torrado alleg ed ly complained to Carmona that the mashed potatoes were cold. Id. Carmona then avers th a t she went back to Church's, complained about the mashed potatoes and they exchanged th e m for a new side order of mashed potatoes. Id. Plaintiffs claim that second serving of m ash ed potatoes tasted like "detergent," and that Carmona complained, again and Church's re im b u rs e d their money. Id. S o m e tim e afterward Plaintiffs allege to have eaten the contaminated mashed potatoes, T o rra d o started to feel ill and developed stomach pain, nausea, diarrhea, and headaches. Id. W ith these symptoms, Torrado was first treated at the Emergency Room of the Arecibo Medical C e n ter ("AMC Emergency Room"). Later on, Torrado was hospitalized three times, once in P u e rto Rico for a week, and twice in Florida for one week and two weeks, respectively. Id. at

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ¶ 2. Accordingly, Plaintiffs have brought the present lawsuit for damages under Articles 1802 a n d 1802 of the Civil Code of Puerto Rico P.R. Laws Ann. tit 31, sec. 5141 & 5142. At this juncture, this Court should clarify that the above narrative is constructed from th e facts alleged by Plaintiffs in the complaint and not facts based on evidence in accordance w ith Rule 56. More importantly, as Defendants' motion for summary judgment is unopposed, n o evidence has been proffered by Plaintiffs to support the allegations made in the complaint, o r refute the facts proffered by SARC. Having qualified the factual background, this Court will p ro c e e d to analyze the facts as presented in the motion for summary judgment. On, or about, August 22, 2003, Carmona went to Church and spoke with Church's f a cility manager, Miriam J. Nogueras ("Nogueras"). Id. at ¶ 8. Carmona claimed to Nogueras th a t about a week before, Torrado got sick and was hospitalized after she ate Church's mashed p o tato e s, when in fact the alleged event would have had to have occurred almost a month e a rlie r. Id. at ¶ 9. During her visit to the Church's facility, Carmona sought reimbursement of s e v e ra l invoices. She also claimed that she was unable to report the incident earlier due to her g ra n d d a u g h te r's admission to the hospital. Id. at ¶ 11. Five days later, Carmona handed in an in c id e n t report at Church's. Id. at ¶ 12. In the aforementioned report, Carmona stated that the in c id e n t was on July 20, 2003. Id. at ¶ 12. Prior to Carmona's incident report, Church's and SARC possesed no formal record that a complaint of this kind or a similar one, was reported, or made at the Church's facility or S A R C 's offices during the period of July ­ August 2003. Id. at ¶¶ 13 & 15. C h u r c h ' s process of making the mashed potatoes Church's prepares mashed potatoes at each of its restaurants. Id. at ¶ 16. Once ready, th e y are placed in covered stainless steel bowls and stored in warmers . Id. The kitchen sink is lo c a te d far away from the area where the food is prepared to prevent accidental spills of

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 d e te rg e n t into the food. Id. In addition, the employees that prepared the food are not allowed to wash any dish or clean the dining room. Id. T o r ra d o 's Medical Treatment O n July 20, 2003 at 11:20 p.m., Torrado arrived at the AMC Emergency Room a c co m p a n ie d by Carmona, where she complained about having a headache and abdominal pain. Id . at ¶ 17. They told AMC Emergency room doctors that the child was suffering the a f o re m e n tio n e d pain since that afternoon, but Carmona made no reference about Torrado having c o n su m e d any "contaminated" or "spoiled" mashed potatoes that day. Id. at ¶ 18. After a r riv i n g , at 11:35 p.m. the treating physician ordered a completed blood count ("CBC") analysis, a urinalysis, and a rectal suppository. Subsequently, the same physician ordered her transfer to th e Arecibo Medical Hospital. Id. at ¶ 19. Finally, he diagnosed Torrado with gastritis, viral s yn d ro m e , and abdominal pain. He made no remark or notation attributing Torrado's condition to consumption of any food. Id. at ¶ 20. On July 21, 2003, at 12:45 a.m. Subsequently, T o rra d o was discharged with a referral to Arecibo Regional Hospital's Emergency Room (ARH E m e rg e n c y Room). Id. at ¶ 21. On July 21, 2003, at 1:50 a.m., Torrado arrived at the ARH Emergency Room with s tro n g abdominal pain. Id. at ¶ 21. Neither the emergency room nurse's notes, nor the p h ysic ian 's notes, contain any remark relating Torrado's illness to her consumption of specific f o o d . Id. at ¶ 23. A physician's progress note written on July 21, 2003, states that (1)Torrado h a d been in the ARH Emergency Room for 24 hour; (2) she tolerated the diet well; (3) she had a soft abdomen, normal peristalsis and no abdominal pain; (4) the abdominal pelvis sonogram w a s negative; and (5) the plan was to discharge her home with laboratory orders for a CBC with d if f ere n tia l and a follow up appointment with a physician on July 25, 2003. Id. at ¶ 27. O n July 22, 2003, Torrado was taken again to the ARH Emergency Room because she w as complaining of abdominal pain. By July 31, 2003, Torrado had returned to Florida, where

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 sh e continued to suffer from similar symptoms to those shown in PR. Id. at ¶ 36. However, in F lo rid a her medical record shows that she suffered from similar problems in 2003. Id. at ¶ 36. F lo r id a doctors also noted that Torrado's mother and aunt have a history of stomach problems. Id . at ¶ 57. None of Torrado's treating physicians noted, or suggested, that her gastrointestinal p ro b le m s were caused by eating Church's mashed potatoes, or any other type of food. Id. at ¶¶ 54, 66, 67,. Applicable Law and Analysis P la in tif f s bring suit under diversity jurisdiction pursuant to Article1802 of the Civil Code o f Puerto Rico. 31 Laws of P.R. Ann. § 5141. Plaintiffs allege that Torrado became ill after e a tin g mashed potatoes at Church's. Defendants argue that Plaintiffs have no evidence to (1) p r o v e the existence of a defective food product prepared by them and (2) to show that the p ro x im a te cause of Torrado's illness was her consumption of SARC's food product. Article 1802 provides that "any person or entity who by an act or omission causes d a m a g e to another through fault or negligence shall be obliged to repair the damage so done...." A plaintiff who seeks relief under this article must establish "(1) a negligent act or omission, (2 ) damages, and (3) a causal relationship between them."Rivera Santiago v. U.S., No. 08-1266, 2 0 0 9 WL 702235 at *2 (D.P.R. March 11, 2009); see also Soc. Gananciales v. Padin Co., Inc., 1 1 7 D.P.R. 94, 17 P.R. Offic. Trans. 111, (1986)(stating that Article 1802 requires, ". . .1) the a c t or omission violating the contract or resulting in the illegal noncontractual act 2) the illegal n a tu re of the same 3) the fault of the agent 4) the occurrence of an injury and 5) the cause and e f f e c t relation between the act or omission and the damage."). Furthermore, restaurants and o ther places of business have a special obligation to ensure that their products and premises are s a f e . Padin Co., id. Accordingly, a plaintiff must provide some proof, either circumstantial or direct, that the d ef en d an t establishment has acted negligently. Once the plaintiff established Defendant's

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 n e g lig e n t act or omission, it must "demonstrate that the defendant's negligence was the pro x im a te cause of her injuries." Vázquez-Filippetti, 504 F.3d 43, 49 (1st Cir. 2007). The Puerto R ic o Supreme Court has stated that a Plaintiff must prove through a defendant's negligence th ro u g h evidence, and that liability under Article 1802 is not presumed by the mere fact that the p la in tif f suffers from some injury or affliction. Plaintiff must prove, ". . .through a p re p o n d e ra n c e of evidence, that the harm caused was most likely caused by the negligence c h a rg e d by plaintiff." Crespo v. Hernández, 121 P.R. Dec. 639, 21 P.R. Offic. Trans. 637, 6 4 7 (1 9 8 8 ). Therefore, "[a] defendant's actions may only be the proximate cause of a plaintiff's in ju rie s if they in fact caused the injuries and the defendant could have reasonably foreseen that th e injuries (or related harms) would result from his actions." Vázquez-Filippetti, 504 F.3d at 4 9 (citations omitted). Regarding the foreseeable element of a tort claim, a Defendant "will be lia b le only for those reasonably foreseeable consequences to its conduct." Belfort v. C o r p o r ac io n Hogar San Agustin, No. 07-1240, 2008 WL 5276192 at *5 (D.P.R. Dec. 18, 2 0 0 8 ); see also Woods-Leber v. Hyatt Hotels of P.R., 124 F.3d 47, 51 (1 st Cir.1997) (stating that fo rese e a b ility is a component of breach of duty and proximate cause). T h is Court does not refute any assertion that given the presence of evidence of c o n ta m in a t e d food in a restaurant, there could be a linkage to Torrado's condition. Nevertheless, th is Court agrees with SARC that Plaintiffs have failed to proffer any evidence that Torrado c o n su m e d contaminated mashed potatoes at Church's on the relevant date. There are allegations th a t Torrado was served a product that tasted like detergent, but these are not substantiated by a product sample, or even sworn declarations from the Plaintiffs as to the veracity of their c la im s . On the contrary, SARC's business records show no record of any incident, or other s im ila r cases of contamination, on or around the date the complaint alleges that Torrado was s e rv e d contaminated food at SARC's restaurant. Moreover, Plaintiffs have not alleged that

Civil No. 07-1314(SEC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S /S a lv a d o r E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge o th e rs suffered from similar contamination. Accordingly, upon the facts properly presented to th is Court, it is impossible to infer negligence on the part of Defendants. Furthermore, even if negligence could be found on the part of Defendants, this Court is u n a b l e to infer the possibility of finding a causal nexus between their allegations against C h u rc h 's and Torrado's illness. Torrado was undoubtedly ill. Nevertheless, nothing in the re c o rd points to Defendants' product as the cause of her afflictions. Given that the medical rec o rd demonstrates that Torrado's condition was serious, it is beyond this Court's

u n d e rs ta n d in g why Plaintiffs would have not informed Torrado's treating physicians that they b e lie v e d her suffering was caused by contaminated mashed potatoes. There might be answers to these questions, but Plaintiffs' counsel has demonstrated a co m p le te lack of interest in perusing the present action. Since the motion for summary ju d g m e n t is unopposed, this Court must accept Defendants' well pleaded facts. Therefore, in lig h t of the above, this Court has no other option than to GRANT SARC's motion for summary ju d g m e n t. Conclusion For the reasons stated above, Defendant's motion for summary judgment is GRANTED. P la in tif f s ' claims against Defendants are hereby DISMISSED with prejudice. Judgement shall b e entered accordingly. SO ORDERED. In San Juan, Puerto Rico, this 31st day of March, 2009.