Opinion
02 Civ. 438 (TPG)
December 10, 2003
Opinion
This is a negligence action brought by plaintiff Elsie Laboy against defendant White Castle System, Inc. ("White Castle") The case was originally filed in Supreme Court, Bronx County, and was removed to federal court by White Castle on the basis of diversity jurisdiction.
Now before the court is White Castle's motion for summary judgment. The motion is granted.
FACTS
The following facts are undisputed, and are taken from the pleadings and the affidavits submitted on the motion.
On November 4, 2001, at about 3 p.m., Laboy consumed four hamburgers at a White Castle restaurant in the Bronx. On the same day, either shortly before or after consuming the hamburgers, Laboy also consumed a can of ravioli. Laboy does not claim that the ravioli came from White Castle.
Laboy states in her affidavit that later that same day she began to feel cramping, abdominal pain, and diarrhea. During the evening of November 5 she was admitted to the emergency room at New York Presbyterian Hospital with severe abdominal pain and bloody diarrhea. Hospital records give inconsistent accounts of when Laboy's diarrhea began, indicating on her discharge report that diarrhea began the night of the 4th, but stating elsewhere that it did not begin until the morning of the 5th.
Tests conducted at New York Presbyterian detected the presence of the bacteria Campylobacter in Laboy's stool, and Laboy was treated with steroid-based medication for campylobacteriosis. During her stay, however, Laboy also developed paranoia and hallucinations, which were thought to be caused in part by a reaction to the steroid treatment.
Laboy was discharged from the hospital on November 13, 2001.
The affidavit of Dr. Irving Nachamkin submitted by White Castle attests that campylobacteriosis is an infectious disease with an incubation period of twenty-four to seventy-two hours.
According to the affidavit of John Chin, Area Supervisor for the White Castle location visited by Laboy, there were other no reports or complaints of any illness as a result of ingesting White Castle food around the time of Laboy's illness.
DISCUSSION
The affidavit of Dr. Nachamkin, stating that Laboy's illness has an incubation period of at least twenty-four hours, is uncontested. This means that, since Laboy's symptoms began on the night of November 4, any food that caused those symptoms must have been ingested no later than the evening of November 3. But Laboy's consumption of the White Castle hamburgers took place in the afternoon of November 4.
Additionally, there is no challenge to the assertion that no other White Castle customers developed symptoms in the days surrounding Laboy's illness.
Together, these uncontested assertions by White Castle demonstrate beyond any triable issue of fact that there is no cause of action for negligence.
CONCLUSION
White Castle's motion for summary judgment is granted, and Laboy's action is therefore dismissed.