Opinion
MIDCV2014-08276 137984
08-22-2017
Gerson Gallardo v. Wendy's Old Fashioned Hamburgers of New York, Inc
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO STRIKE
Garry V. Inge, Associate Justice.
INTRODUCTION
This case arises out of an allegation of food poisoning. The plaintiff, Gerson Gallardo (" Gallardo"), brought this action against the defendant, Wendy's Old Fashioned Hamburgers of New York, Inc. (" Wendy's"), alleging that in September 2013 Wendy's negligently handled various food items causing him food poisoning. In the Amended Complaint, he asserts various claims related to this allegation, including failure to warn, breach of warranty, strict liability, and negligence. This matter is currently before the court on Wendy's Motion for Summary Judgment and its related Motion to Strike. The Motion for Summary Judgment will be ALLOWED, while the Motion to Strike will be DENIED .
BACKGROUND
Gallardo arrived at the Wendy's store located at 303 Central Street, in Natick, Massachusetts sometime between 12:00 p.m. and 1:00 p.m., on September 11, 2013 (the " date of the incident"), in order to purchase lunch. According to Gallardo, he ordered a grilled chicken sandwich, french-fries, and a drink. According to logs maintained by Wendy's, however, none of the three chicken sandwiches prepared between the hours of 11:07 a.m. and 12:15 p.m., match Gallardo's order. Howard Aff., para. 1-6, Ex. A. Regardless of exactly what he ordered, at some point between 12:00 p.m. and 1:00 p.m., Gallardo consumed the food he purchased. He does not contend the food smelled or tasted peculiar or, that it appeared to have been cooked improperly.
While not material to the current dispute, the parties disagree about what Gallardo ordered to drink. Wendy's claims Gallardo ordered a lemonade. Gallardo contends that he ordered a soda with his meal, but the cashier told him that, due to certain electrical problems, the soda machine was not working and so, he accepted a lemonade in place of the soda.
On the date of the incident, the Wendy's store began experiencing electrical problems around the time of Gallardo's visit. According to Wendy's, the electrical problems did not occur until after 12:15 p.m. and, the problems did not affect the operation of the grill or the frontend cash registers. Howard Aff., para. 1-6 . Wendy's states receipts were issued for all purchases made during this time period, but that, due to the electrical problems, the store shut down completely between 12:15 p.m. and 1:45 p.m. Howard Aff., para. 1-6 .
Gallardo disputes Wendy's assertions, but he cites to no record evidence to support his contentions. He claims the store was already experiencing electrical issues when he arrived, which was before 12:15 p.m. He claims the frontend cash register was not working when he placed his order. According to Gallardo, the cashier was writing orders down on a piece of paper and calculating the money owed by looking at the menu board. He states the cashier never gave him a receipt.
Gallardo alleges that, on the date of the incident, approximately three hours after eating at Wendy's, he became ill. Three days later, on September 14, 2013, Gallardo went to Marlborough Hospital, complaining of diarrhea. Marlborough Hospital obtained a stool culture, which, when returned from the lab on September 16, 2013, revealed the presence of Camplobacter jejuni bacteria (" CJ Bacteria"). At that time, Gallardo was prescribed a standard course of Ciproflaxcin antibiotics to treat his infection. He did not fill this prescription until three days later on September 19, 2013.
On September 20, 2013, Gallardo visited his primary care physician complaining that he had developed a rash from the Ciproflaxcin antibiotics. Gallardo visited his physician again, on October 2, 2013, for a follow-up for the alleged food poisoning. Subsequently, Gallardo saw his physician several times for unrelated reasons. In his deposition, Gallardo acknowledged that, after January 29, 2014, he sought no further medical treatment for injuries suffered as a result of the alleged food poisoning.
As a result of the CJ Bacteria found in his stool culture, on September 23, 2013, Gallardo filed a telephone complaint against Wendy's with the Town of Natick Board of Health (the " BOH"). Later, on the same day, he filed a formal complaint with the BOH. In connection with his complaints, the BOH visited the Wendy's store located at 303 Central Street. The BOH determined that the grill that cooked the grilled sandwich consumed by Gallardo on the date of the incident was working properly. The BOH reviewed the store's temperature and refrigeration logs for the date of the incident. The BOH found no violations. Katz Aff., Ex. 3 .
DISCUSSION
THE MOTION FOR SUMMARY JUDGMENT
I. Standard of Review
The court grants summary judgment where there are no genuine issues of material fact and the record entitles the moving party to judgment as a matter of law. See Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue. See Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
Once the moving party establishes the absence of a triable issue by either of the above methods, the party opposing summary judgment must respond with evidence of specific facts establishing the existence of a genuine dispute. See Pederson, 404 Mass. at 17. The opposing party cannot rest on the allegations in the pleadings. See Key Capital Corp. v. M& S Liquidating Corp., 27 Mass.App.Ct. 721, 728, 542 N.E.2d 603 (1989). And, mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat summary judgment. See Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985). The court views the evidence in the light most favorable to the non-moving party, but does not weigh evidence, assess credibility, or find facts. Drakopoulos v. United States Bank Nat'l Ass'n, 465 Mass. 775, 788, 991 N.E.2d 1086 (2013), quoting O'Connor v. Redstone, 452 Mass. 537, 550, 896 N.E.2d 595 (2008).
II. Analysis
A. Negligence and Breach of Warranty
Wendy's argues it is entitled to summary judgment on Gallardo's claims for negligence and breach of warranty because Gallardo has failed to present sufficient evidence of causation. After review of the record, the court concludes Wendy's is correct. Although Gallardo is acting pro se and such litigants are afforded some leeway in the filing of their pleadings, Mmoe v. Commonwealth, 393 Mass. 617, 620, 473 N.E.2d 169 (1985), the Massachusetts Rules of Civil Procedure and the standards applicable to summary judgment bind these litigants just as they bind other litigants. See Kornatowski v. Family Mut. Sav. Bank, 388 Mass. 1011, 1011, 446 N.E.2d 404 (1983).
As the party opposing summary judgment and as the party that will have the burden of proof at trial, at the summary judgment stage, Gallardo has the responsibility of submitting evidence demonstrating proof of every element required to prove his claims for negligence and breach of warranty, including causation. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 575 N.E.2d 734 (1991) (stating summary judgment is properly entered in defendant's favor, where there is a " complete failure of proof concerning . . . essential element[s]" of plaintiff's case). He has not made this showing. Gallardo's contradictions of Wendy's factual allegations, without reference to record evidence supporting his assertions, are not sufficient to defeat summary judgment.
Although not binding on this court, Denaro v. 99 Restaurant, Inc., 2002 Mass.App.Div. 195, 2002 WL 31546120 (Mass.App.Div., Sept. 18, 2002) (Coven, J.), is instructive. In that case, the plaintiff-patron brought claims for negligence and breach of warranty against the defendant-restaurant, alleging he had contracted salmonella poisoning from food the restaurant served him. The court entered summary judgment in favor of the restaurant, concluding there was not sufficient evidence of causation.
According to the court, in a food poisoning case, in the absence of direct evidence, causation can be established through circumstantial evidence sufficient to permit a trier-of-fact to infer food a restaurant served was contaminated. Id. at *2. " Expert opinion as to causation, proof that other patrons had contracted salmonella poisoning at the defendant's restaurant, or evidence that the food had an abnormal or unwholesome appearance, taste or odor would have been probative." Id. at *2, and cases cited. But, the plaintiff offered no such evidence and, the court concluded the plaintiff's confirmed case of salmonella poisoning, the absence of any other food consumed within twelve hours, and the onset of symptoms immediately after the meal alone were " insufficient as a matter of law to raise even a reasonable inference in his favor on the question of causation." Id., and cases cited. The current case warrants the same outcome.
Here, there is no direct evidence the food Gallardo purchased from, and consumed at, the Wendy's store contained CJ Bacteria and, Gallardo has failed to offer sufficient circumstantial evidence to permit a trier-of-fact to reasonably infer that the food was contaminated. There is no record evidence indicating there was anything abnormal about the taste, smell, or appearance of the food Gallardo consumed. There is no record evidence establishing that other people who ate at the Wendy's store around the same time as Gallardo became infected with CJ Bacteria. In fact, when the BOH inspected the Wendy's store in response to Gallardo's complaint, it found no health code violations. Finally, Gallardo offered no expert report or affidavit to support his assertion that the food he ate at the Wendy's store was the cause of his infection and/or illness.
The Motion for Summary Judgment will be ALLOWED, insofar as it pertains to Gallardo's claims for negligence and breach of warranty.
B. Failure to Warn
The duty to warn typically arises in negligence cases premised on products liability. See generally, Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (discussing products liability and duty to warn). It imposes, upon manufacturers and sellers of products, a duty to provide purchasers " adequate warnings of foreseeable latent dangers involved in [a] product's normal and intended use." Fiorentino v. A.E. Staley Mfg. Co., 11 Mass.App.Ct. 428, 433, 416 N.E.2d 998 (1981). To prevail on such a claim, a plaintiff is still required to prove causation; a plaintiff must demonstrate that the alleged failure to warn caused his or her injury. See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 438-43, 990 N.E.2d 997 (2013) (discussing duty to warn and causation). Here, even assuming a case such as this, which involves an allegation of food poisoning, can be brought under a failure to warn theory, Gallardo's claim fails, because, as explained above, he has not provided sufficient evidence of causation.
The Motion for Summary Judgment will be ALLOWED, insofar as it pertains to Gallardo's claim for failure to warn.
C. Strict Liability
As Wendy's asserts, Massachusetts does not recognize a strict liability cause of action for a defective product such as food. See, e.g., Commonwealth v. Johnson Insulation, 425 Mass. 650, 653-54, 682 N.E.2d 1323 (1997) (" [w]e have declined to allow claims for strict liability in cases for defective products"). Instead, such a claim must be asserted pursuant to a breach of warranty theory. Id. Even examining Gallardo's claim for strict liability as a claim for breach of warranty, the claim fails. As explained above, because he has not adequately demonstrated evidence of causation, Gallardo cannot overcome Wendy's request for summary judgment on his claim for breach of warranty.
The Motion for Summary Judgment will be ALLOWED, insofar as it pertains to Gallardo's claim for strict liability.
THE MOTION TO STRIKE
Along with the Motion for Summary Judgment, Wendy's filed the Motion to Strike, seeking to strike Gallardo's entire opposition. Gallardo's response to Wendy's summary judgment filing was not made in compliance with the Massachusetts Rules of Civil Procedure. In particular, his responses to Wendy's statements of undisputed fact are, largely, unresponsive and without citation to admissible evidence. However, because, for the reasons explained above, the court allows the Motion for Summary Judgment, dismissing all claims against Wendy's, the issues raised in the Motion to Strike are moot and need not be addressed at this time. Therefore, the Motion to Strike will be DENIED .
CONCLUSION AND ORDER
For the reasons stated above, it is hereby ORDERED that:
1. Wendy's Motion for Summary Judgment is ALLOWED; and
2. Wendy's Motion to Strike is DENIED .
SO ORDERED.