Griffin v. Wilcohess LLC

Filing 30

ORDER granting 25 Motion for Summary Judgment. Signed by Honorable Joseph F Anderson, Jr on 09/23/2010.(bshr, )

G r i f f i n v. Wilcohess LLC

D o c . 30

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA R O C K HILL DIVISION J a m e s Griffin, P l a in tif f , vs. W ilc o h e s s , LLC d/b/a Wendy's, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C / A No.: 0:10-489-JFA

ORDER

T h is matter comes before the court on the defendant's motion for summary judgment. (E C F . No. 25). The Court held a hearing on September 21, 2010. After considering the w rit te n materials submitted and the arguments of counsel, the Court grants the motion for s u m m a ry judgment. I. F a c tu a l and Procedural History T h e plaintiff purchased and ate a double cheeseburger from a Wendy's restaurant lo c a te d in defendant Wilcohess, LLC's store in Blacksburg, South Carolina on July 6, 2008. T h e plaintiff alleges that the defendant was negligent in the preparation of his food and that th is negligence caused him to develop food poisoning from salmonella bacteria. On January 19, 2010, the plaintiff filed suit for negligence in the South Carolina Court o f Common Pleas in York County. On March 2, 2010, the defendant removed the case to th is Court and subsequently moved for summary judgment. II. L e g a l Standard S u m m ary judgment should be granted "if the pleadings, the discovery and disclosure

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m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material f a ct." Fed. R. Civ. P. 56(c)(2). The party opposing summary judgment "must . . . set out s p e c if ic facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). "The party seeking summary judgment carries the burden of showing that there is no g e n u in e issue as to any material fact in the case." Pulliam Inv. Co. v. Cameo Props., 810 F .2 d 1282, 1286 (4th Cir. 1987). "When determining whether the movant has met its burden, th e court must assess the documentary materials submitted by the parties in the light most fa v o rab le to the nonmoving party." Id. III. L a w and Analysis To prove negligence, the plaintiff must be able to show that there was a duty, a breach o f that duty, causation, and damages. Hubbard v. Taylor, 339 S.C. 582 (S.C. Ct. App. 2000). T h e burden is on the plaintiff to prove that the cheeseburger was unfit and that it caused his illn e ss . Miller v. Atlantic Bottling Corp., 259 S.C. 278 (1972). In South Carolina, a plaintiff c a n not prove negligence through res ipsa loquitur. Eickhoff v. Beard-Laney, 199 S.C. 500 (1 9 4 2 ). First, the plaintiff is unable to show that the defendant breached a duty and sold him a n unfit cheeseburger. The defendant submitted an affidavit from the district manager which s t a te s that 3,452 food items were sold at that Wendy's location on July 6, 2008, and there w e re no other reports of illness. Further, during that time, the store maintained a 100% retail f o o d inspection rating from the South Carolina Department of Health and Environmental

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C o n tro l. Finally, all food is prepared following the Wendy's Operations Standards Manual, an d the computer-controlled grill prevents employees from serving under-cooked food. In h is deposition, the plaintiff states that the meat in the cheeseburger appeared fully-cooked a n d tasted normal. The plaintiff has presented no evidence that the cheeseburger was n e g lig e n tly prepared except a bare claim that he was the only member of his household to e a t the cheeseburger and the only member to get sick. Second, the plaintiff has not shown anything to suggest that the cheeseburger caused h is illness except test results that confirm he had salmonella poisoning. When an average ju ro r could not conclude whether there was a causal connection between eating the u n w h o le s o m e food and a later illness, expert testimony is needed. See Burr v. Coca-Cola B o ttlin g Co. of Columbia, 256 S.C. 162 (1971). The plaintiff has not retained an expert e x c e p t for the treating physician, who determined that the plaintiff had salmonella poisoning b u t did not express an opinion about its source. In the opinion of Dr. Robert Cantey, the defendant's expert, if the cheeseburger c o n ta in e d salmonella, the length of time from when the plaintiff ate it until he starting feeling s ic k was not sufficient for the bacteria to incubate. He believes that the poisoning came from f o o d he ate the previous day, such as eggs or oysters. Dr. Cantey lists the typical incubation p e rio d as ranging from 6 to 72 hours with an average of 54 hours. The plaintiff has had d if f ic u lty stating exactly how much time passed before his symptoms started, and the tim elin es in his statement and deposition vary. Regardless of the precise time, the plaintiff's

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s ym p to m s started too soon to be a result of eating the cheeseburger, according to Dr. Cantey. IV . C o n c lu s io n " [ T ]h e mere existence of some alleged factual dispute between the parties will not d e f e a t an otherwise properly supported motion for summary judgment." Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 247-248 (1986). The plaintiff tries to prove negligence by relying o n the fact that he was the only member of his household to get salmonella poisoning. H o w e v e r, to defeat the defendant's motion for summary judgment, the plaintiff "may not rely m e re ly on allegations or denials in [his] own pleading; rather, [his] response must--by a f f id a v its or as otherwise provided in this rule--set out specific facts showing a genuine is s u e for trial." Fed. R. Civ. P. 56(e)(2). Viewing the evidence in the light most favorable to the plaintiff, the Court finds that th e re are no genuine issues of material fact in this case and grants the defendant's motion for su m m a ry judgment. IT IS SO ORDERED.

S ep tem b er 23, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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