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February 3, 2017 by admin

Torts — Restaurants — Action against restaurant by plaintiff who alleged he was injured when he swallowed broken mussel shell in plate of pasta

42
Fla. L. Weekly D289c
op of Form

Torts
— Restaurants — Action against restaurant by plaintiff who alleged he was
injured when he swallowed broken mussel shell in plate of pasta — Trial court
erred in granting summary judgment in favor of defendant where there were
genuine issues of material fact as to which party broke mussel shell consumed
by plaintiff and whether broken mussel shell was submerged in pasta when it was
served, and thus not visible when consumed — Although trial court applied
correct “reasonable expectation test” in determining that restaurant was not
negligent, it reached erroneous conclusion when it found that plaintiff should
have reasonably expected a broken mussel shell — Restaurant patron would
reasonably expect whole mussel shells with pasta dish consumed by plaintiff
given explanation of dish on menu and picture showing that the dish came with
fully intact mussels arrayed in ring on top of pasta, but determinative
questions at issue were whether patron was served broken shell and whether it
was submerged

PABLO
DELLATORRE, Appellant, v. BUCA, INC., Appellee. 4th District. Case No. 4D16-65.
February 1, 2017. Appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
CACE15-001103(14). Counsel: Michael Lewis Beckman of Viles & Beckman,
L.L.C., Fort Myers, for appellant. Mark D. Schellhase of GrayRobinson, P.A.,
Boca Raton, and Alissa M. Ellison of GrayRobinson, P.A., Tampa, for appellee.

(FORST,
J.) Appellant Pablo Dellatorre appeals the trial court’s final summary judgment
in favor of Appellee Buca Restaurants, Inc. (“Buca”). We affirm without
discussion Appellant’s first argument on appeal regarding whether the trial
court impermissibly relied on personal opinion when granting Buca’s motion for
summary judgment. We write solely to address Appellant’s second contention that
there remained genuine issues of material fact precluding summary judgment. As
discussed below, we agree with Appellant and reverse and remand.

Background

In
2014, Appellant dined at one of Buca’s restaurants, where he had eaten twice
before. He ordered the “Linguine Frutti di Mare,” a pasta dish he had eaten on
one of his previous visits, which the menu described as having “shrimp, baby
clams, mussels and calamari in spicy red clam sauce.” Accompanying the
description was a picture of the dish itself showing linguine surrounded by
approximately twenty fully-intact mussel shells. A corporate representative for
Buca testified at a deposition that, according to standard operating procedure,
chefs typically prepare this dish by placing linguine in the center of the
plate, and then surrounding the linguine (and the other seafood) with a ring of
mussels. Chefs visually inspect each mussel, making sure not to serve broken
mussel shells. As the representative explained, “if there’s a shell that is not
completely intact, meaning it’s not opened fully or it’s not 100 percent, that
dish would never even get to the pasta stage.”

Appellant
testified at his deposition that, after consuming most of his entrée, “[t]he
plate was almost empty. I put the last bite in my mouth, as we are here; then
all of a sudden I felt something here that was going down and cutting me. It
seemed as if it was opening my chest up in two as if I had swallowed a knife.”
Appellant was rushed to the hospital where surgery was performed. The medical
staff extracted what both parties agreed was “a broken mussel shell, about
one-and-a-half to two inches long.”

Appellant
also explained at the deposition that he “wasn’t expecting to find this broken
shell in the plate of pasta.” He swore in an affidavit that he “did not cause
the shells to break in [his] dish at any point during the meal. The shell was
broken and lodged in [his] throat [and] was served to [him] in the broken sharp
condition by Defendant, Buca, Inc.” Another patron dining with Appellant that
night swore the same: that Appellant did not break the mussel shell, and that
Buca did instead. However, Buca’s representatives denied the restaurant could
have served Appellant a broken mussel shell. At a deposition, Buca’s corporate
representative suggested at various times that Appellant must have broken the
mussel shell when he ate it.

Ultimately,
the trial court granted Buca’s motion for summary judgment, finding that there
were no genuine issues of material fact and that Appellant was himself
negligent in eating the broken mussel shell.

Analysis

“The
standard of review for an order granting summary judgment is de novo.” Int’l
Christian Fellowship, Inc. v. Vinh on Prop., Inc.
, 954 So. 2d 1214, 1215
(Fla. 4th DCA 2007) (quoting 5th Ave. Real Estate Dev., Inc. v. Aeacus Real
Estate Ltd. P’ship
, 876 So. 2d 1220, 1221 (Fla. 4th DCA 2004)).

In
order for a party to prevail under summary judgment, he or she must satisfy two
steps: “[t]he judgment sought shall be rendered forthwith if the pleadings and
summary judgment evidence on file show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.” Fla. R. Civ. P. 1.510(c); see also Wills v. Sears, Roebuck &
Co.
, 351 So. 2d 29, 30 (Fla. 1977); Fini v. Glascoe, 936 So. 2d 52,
54 (Fla. 4th DCA 2006). As the Second District Court of Appeal stated, when a
record “raises even the slightest doubt that an issue might exist, that doubt
must be resolved against the moving party and summary judgment must be denied.”
Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138,
1140 (Fla. 2d DCA 2000).

Here,
the record raises doubt that there are no genuine issues of material fact.
There are at least two: which party broke the mussel shell Appellant consumed,
and whether the broken mussel shell was submerged in the pasta when it was
served to Appellant (and thus not visible when consumed).

Buca’s
corporate representative denied several times at a deposition that Buca would
have served Appellant a broken mussel shell, and averred that Appellant must
have broken the shell: “It would be my understanding that the shell was broken
upon the guest’s contact with the dish. . . . Experience being I’ve never seen
a broken shell in a dish that’s been received that’s caused a complaint.” Buca
further represented that it had a standard operating procedure in which chefs
would visually inspect each mussel and then hand place each one in a circle
around the pasta — not in the pasta. Buca’s corporate representative
acknowledged the dish was supposed to come with fully intact mussel shells, placed
around the linguine
. In direct disagreement, Appellant asserted in his
affidavit and at his deposition that Buca served him the broken mussel shell,
and that he did not break it. A witness at the scene that was dining with
Appellant also swore in an affidavit that Buca must have served Appellant the
broken shell. Moreover, both Appellant and the witness claimed the broken shell
was “hidden” under the pasta, not placed in the ring of mussels.

Which
party broke the mussel shell and if it was submerged in the pasta when served
are dispositive factual issues with respect to determining if Buca was
negligent. If Appellant broke the shell after it was served to him and it was
not served submerged (and thus not visible) in the pasta, it would be difficult
to conclude that Buca was negligent for serving this order of Linguine Frutti
di Mare — a dish known to contain mussel shells. However, if Buca did in fact
serve Appellant the broken mussel shell and/or it was not visible when the
entrée was presented to Appellant, then the jury could find that no patron
would reasonably expect to so find a broken shell in this dish.

We
conduct a “reasonable expectation” test to determine if a restaurant is
negligent when it serves a patron “a harmful substance.” Zabner v. Howard
Johnson’s, Inc.
, 201 So. 2d 824, 825-26 (Fla. 4th DCA 1967). In Zabner,
a restaurant served a patron walnut maple ice cream that contained a walnut
shell that injured the patron. Id. at 825. The trial court held that the
restaurant was not negligent and was entitled to summary judgment because the
walnut shell was a “natural” ingredient of the walnut ice cream. Id. On
appeal, we noted that a patron is likely to reasonably expect a natural
ingredient in his or her meal, but not always. Id. at 826. Determining
that it was unclear whether a patron would reasonably expect a walnut shell in
his or her walnut ice cream, we remanded for a jury trial, explaining, “what
might be natural to the ingredients of that food prior to preparation and what
is reasonably expected by the consumer is a jury question in most cases.” Id.
at 828.

The test should be what is
“reasonably expected” by the consumer in the food as served, not what might be
natural to the ingredients of that food prior to preparation.

Id.
at
826. As such, “the test is related to the foreseeability of harm on the part of
the defendant.” Id. at 827; see also Mexacali Rose v. Superior Court,
822 P.2d 1292, 1303 (Cal. 1992) (“[I]t is a question for the trier of fact to
determine whether the presence of the injury-producing substance was caused by
the failure of the defendants to exercise reasonable care in the preparation of
the food, and whether the breach of the duty to exercise such care caused the
consumer’s injury.”). Compare Betehia v. Cape Cod Corp., 103 N.W.2d 64,
69 (Wis. 1960) (“What is to be reasonably expected by the consumer is a jury
question in most cases; . . . we cannot say as a matter of law that a patron of
a restaurant must expect a [chicken] bone in a chicken sandwich . . . .”), with
Ex parte Morrison’s Cafeteria of Montgomery, Inc.
, 431 So. 2d 975, 978-79
(Ala. 1983) (adopting the reasonable expectation test but affirming the trial
court’s judgment that, as a matter of law, a patron could reasonably expect to
find a fish bone in a fish fillet).

Although
the trial court here applied the correct reasonable expectation test, this case
is no exception to the general rule that most cases presenting this scenario
require jury trials. A Buca patron would reasonably expect whole mussel
shells with the pasta. After all, the menu explained and showed that the dish
came with fully intact mussels, arrayed in a ring on top of the pasta. The
determinative questions at issue in this case are whether Appellant was served
a broken mussel shell and whether it was submerged (“hidden”) in the
pasta. As material factual disputes remain to be resolved, the grant of summary
judgment was inappropriate.

Conclusion

There
remain at least two genuine issues of material fact in Appellant’s lawsuit
against Buca: whether Appellant or Buca broke the mussel shell, and whether the
shell at issue was invisibly served underneath the pasta. As such, the trial
court erred in finding Buca entitled to judgment as a matter of law. The court
reached an erroneous conclusion in its application of the reasonable expectation
test when it found that Appellant should have reasonably expected a broken mussel
shell — such a conclusion is contrary to both parties’ arguments. Accordingly,
we reverse the trial court’s grant of final summary judgment and remand for
further proceedings.

Reversed
and remanded
. (WARNER and GROSS, JJ., concur.)

* *
*

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