ALONZO SHELLY, et al. v. KFC U.S. PROPERTIES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2025-05T52025-05T5

ALONZO SHELLY, INDIVIDUALLY,

MATTIE GARCIA, and MICHAEL

GARCIA, her husband, and

CELESTE OYEKANMI, and ENOCH

OYEKANMI, her husband,

Plaintiffs-Appellants,

v.

KFC U.S. PROPERTIES, INC.,

Defendant-Respondent.

________________________________

 

Argued October 4, 2006 - Decided December 13, 2006

Before Judges Coburn, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3516-03.

Daniel B. Needle argued the cause for appellants (Kohn, Needle & Silverman, attorneys; Mr. Needle, on the brief).

Timothy E. Shanley argued the cause for respondent (St. John & Wayne, attorneys; Mr. Shanley, on the brief).

PER CURIAM

Plaintiffs, Alonzo Shelly, Mattie Garcia and Michael Garcia, her husband, and Celeste Oyekanmi and Enoch Oyekanmi, her husband, appeal from an order of judgment entered by the Law Division on November 16, 2005, dismissing their complaint against defendant, KFC U.S. Properties, Inc. We affirm.

On April 24, 2003, plaintiff, Alonzo Shelly, and his sisters, Mattie Garcia and Celeste Oyekanmi, filed their complaint alleging that defendant had "negligently prepared and sold" food, causing them to become ill. Plaintiffs were the only witnesses to testify at trial. At the close of plaintiffs' case, the court granted defendant's motion for an involuntary dismissal, R. 4:37-2(b), determining that plaintiffs had failed to present expert testimony establishing the nature of their illnesses and that their illnesses were caused by the food purchased from defendant.

On Saturday, May 5, 2001, Alonzo Shelly purchased chicken strips, mashed potatoes, coleslaw, and two apple pies from a Kentucky Fried Chicken restaurant in Elizabeth. After purchasing the meal, Alonzo Shelly went home and immediately shared the meal with Mattie Garcia and Celeste Oyekanmi. When consumed, the food tasted good, did not have any unusual odors, and the chicken and mashed potatoes were warm. None of the plaintiffs had consumed any other food that day; nor had Mattie or Celeste consumed any food the prior day. Later that evening, all three plaintiffs became nauseated, had diarrhea, and vomited. On May 7, 2001, Alonzo Shelly and Mattie Garcia went to the emergency room at Irvington General Hospital for treatment and were released the same day. On May 9, 2001, Celeste Oyekanmi went to the same emergency room and was treated and released the same day. Alonzo Shelly's illness continued for two or three days following his treatment at the hospital, and Celeste Oyekanmi continued to feel nauseated, vomited for three days, and had diarrhea for about one week. No medical evidence was presented concerning the nature of plaintiffs' illnesses.

On appeal, plaintiffs argue:

POINT I.

THE LOWER COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANTS['] MOTION FOR A DIRECTED VERDICT.

A. THE LOWER COURT MISINTERPRETED McGUINESS [V. WAKEFERN CORP., 257 N.J. SUPER. 339 (LAW DIV. 1991)] AS ITS BASIS FOR GRANTING A DIRECTED VERDICT.

B. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT ABSENT EXPERT TESTIMONY PLAINTIFFS' PROOFS WERE INSUFFICIENT TO BE PRESENTED TO THE JURY.

C. PLAINTIFFS SUCCEEDED IN MEETING THEIR BURDEN UNDER DOCTRINE OF RES IPSA LOQUITUR.

D. THE TRIAL COURT ERRED IN NOT ACCORDING PLAINTIFFS THE BENEFIT OF ALL REASONABL[E] INFERENCES.

POINT II.

THE LOWER COURT COMMITTED REVERSIBLE ERROR IN BARRING PLAINTIFFS [FROM TESTIFYING] AS TO THEIR AILMENT[S].

POINT III.

THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFFS' MOTION TO READ DEPOSITION TESTIMONY TO THE JURY OF A SUBPOENAED WITNESS WHO FAILED TO APPEAR.

A. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT PLAINTIFFS HAD TO HAVE ISSUED A NEW NOTICE IN LIEU OF SUBPOENA TO DEFENDANT'S COUNSEL OR THAT THE ORIGINAL NOTICE WAS NO LONGER VALID.

B. THE LOWER COURT FURTHER ERRED IN NOT ALLOWING DEPOSITION TESTIMONY OF THE WITNESS TO BE READ TO THE JURY.

POINT IV.

THE LOWER COURT COMMITTED REVERSIBLE ERROR IN NOT ALLOWING PLAINTIFFS TO CALL PERSONS PRESENT IN THE COURTROOM AS WITNESSES.

We review a trial court's grant of a defendant's motion for judgment at the close of the plaintiff's case, R. 4:37-2(b), de novo, that is, by applying the same legal standard as the trial court. Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 527 (App. Div. 2004). Under the rule, the trial court is required to deny the motion "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). Stated another way, if the trial court, after accepting as true all the evidence presented in a plaintiff's case and providing the plaintiff with the "'benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). If we determine "there is no genuine issue of material fact, we decide whether the trial court's ruling on the law was correct." Turner v. Wong, 363 N.J. Super. 186, 199 (App. Div. 2003). "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. of Manalapan, 140 N.J. 366, 378 (1995)).

Under Point I, plaintiffs argue that the trial court erred in granting defendant's motion for an involuntary dismissal at the end of their case. Plaintiffs contend that they were not required to present expert testimony to prove the nature of their illnesses or causation. We disagree.

To establish a cause of action in negligence, a plaintiff must prove: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.) certif. denied, 150 N.J. 27 (1997). Generally, negligence is not presumed, and the burden of proving negligence rests on the plaintiff. Rocco v. NJ Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000). Here, plaintiffs alleged that they had suffered food poisoning. Accordingly, plaintiffs were required to prove that their illnesses were caused by defendant's food, rather than having suffered a form of gastroenteritis, stomach flu, or other illness unrelated to food.

"[A] lay witness may give his [or her] opinion in matters of common knowledge and observation." State v. Labrutto, 114 N.J. 187, 197 (1989). The opposite side of the same coin dictates that "a jury should not be allowed to speculate without the aid of expert testimony in any area where laypersons could not be expected to have sufficient knowledge or experience." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2006). Simply stated, "expert testimony is required when the subject matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Ibid. Therefore, although a plaintiff may testify to the symptoms he or she subjectively perceives, such as, fever, vomiting, and diarrhea, expert testimony is generally necessary to establish the etiology of the illness, particularly where the symptoms are characteristic of more than a single illness. Such was the case here.

Plaintiffs argue in the alternative that they were entitled to proceed to a jury under the doctrine of res ipsa loquitur without medical testimony. The res ipsa loquitur doctrine "permits an inference of defendant's negligence 'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). If the doctrine applies "the factfinder may draw 'the inference that if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred.'" Jerista v. Murray, 185 N.J. 175, 193 (2005) (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)). "Although res ipsa does not shift the burden of proof to the defendant, it ordinarily assures the plaintiff a prima facie case that will survive summary judgment." Ibid. (underscoring in original).

We hold that before a plaintiff, alleging that he or she suffered food poisoning because of the negligence of a food seller, may rely upon the doctrine of res ipsa loquitur to defeat a motion to dismiss, the plaintiff must establish that he or she suffered food poisoning and not some other form of illness, McGuiness, supra, 257 N.J. Super. at 343; or that there was a foreign substance in the food product, Migliozzi v. Safeway Stores, Inc., 51 N.J. Super. 313, 316-17 (App. Div. 1958), and Wilson v. Coca-Cola Bottling Co. of NY, Inc., 3 N.J. Super. 102, 104 (App. Div. 1949); or at least, that the food had an unusual smell or taste, laying a foundation for the jury to infer that there was a defect in the food product. Here, plaintiffs failed in their proofs.

We have considered plaintiffs' arguments under Points II, III, and IV, and we are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The trial judge correctly barred plaintiffs from referencing their elements as "food poisoning." As discussed, supra, medical expert testimony was required to prove the nature of their illnesses. Although we believe the trial court should have allowed the reading of defendant's former employee's deposition testimony under N.J.R.E. 803(b)(4), "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship," we conclude that such error was harmless because the testimony did not tend to establish that plaintiffs had suffered food poisoning caused by consumption of defendant's food. The same is true of plaintiffs' argument concerning the trial court's ruling prohibiting plaintiffs from calling defendant's restaurant general manager to testify on their behalf.

Affirmed.

 

Improperly pleaded as Kentucky Fried Chicken.

Plaintiffs Michael Garcia and Enoch Oyekanmi sued per quod. All references to plaintiffs in this opinion refers to Alonzo Shelly, Mattie Garcia, and Celeste Oyekanmi.

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A-2025-05T5

December 13, 2006