Oakes v. Carrabba's Italian Grill, LLC, No. 2:2009cv01123 - Document 26 (D. Nev. 2010)

Court Description: ORDER Denying 18 Motion for Summary Judgment. Signed by Chief Judge Roger L. Hunt on 7/6/10. (Copies have been distributed pursuant to the NEF - ASB)
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Oakes v. Carrabba's Italian Grill, LLC Doc. 26 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 MARGARET OAKES, an individual, 9 10 11 12 13 14 ) ) Plaintiff, ) ) vs. ) ) CARRABBA’S ITALIAN GRILL, LLC, a ) foreign corporation doing business in the State ) of Nevada; DOES I–X; and Roe Corporations ) I–X, inclusive, ) ) Defendants. ) _______________________________________) Case No.: 2:09-cv-01123-RLH-RJJ ORDER (Motion for Summary Judgment–#18) 15 16 Before the Court is Defendant Carrabba’s Italian Grill’s Motion for Summary 17 Judgment (#18), filed March, 17, 2010. The Court has also considered Plaintiff Margaret Oakes’ 18 Opposition (#19), filed March 31, 2010, and Carrabba’s Reply (#20), filed April 19, 2010. BACKGROUND 19 20 This case involves a personal injury dispute arising from a meal Plaintiff Margaret 21 Oakes ate at Defendant Carrabba’s Italian Grill. On May 26, 2007, Oakes went to Carrabba’s and 22 ordered “pescatore linguine,” a pasta dish that includes mussels served in their shells. During the 23 meal, Oakes choked on a mussel shell fragment. She was taken to a hospital where she underwent 24 two surgeries to remove the shell. On June 26, 2009, Oakes filed suit against Carrabba’s alleging 25 claims for (1) negligence, (2) strict products liability, and (3) violation of the implied warranty of 26 merchantability. AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 On June 23, 2009, Carrabba’s removed the case to this Court based on diversity of 2 the parties. Carrabba’s has now moved for summary judgment on all three of Oakes’ claims. For 3 the reasons discussed below, the Court denies Carrabba’s Motion for Summary Judgment. 4 5 6 DISCUSSION I. Legal Standard A court will grant summary judgment if “the pleadings, the discovery and 7 disclosure materials on file, and any affidavits show there is no genuine issue as to any material 8 fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An 9 issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 10 find for the nonmoving party, and a dispute is “material” if it could affect the outcome of the suit 11 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). In 12 evaluating a motion, a court views all facts and draws all inferences in the light most favorable to 13 the nonmoving party. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). 14 The movant bears the burden of showing that there are no genuine issues of 15 material fact. Id. “In order to carry its burden of production, the moving party must either produce 16 evidence negating an essential element of the nonmoving party’s claim or defense or show that the 17 nonmoving party does not have enough evidence of an essential element to carry its ultimate 18 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 19 (9th Cir. 2000). Once the movant satisfies the requirements of Rule 56, the burden shifts to the 20 party resisting the motion to “set forth specific facts showing that there is a genuine issue for 21 trial.” Anderson, 477 U.S. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The 22 nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, 23 through affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME 24 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there 25 is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio, 26 475 U.S. 574, 586 (1986). AO 72 (Rev. 8/82) 2 1 2 II. Motion for Summary Judgment A. 3 Negligence Oakes claims Carrabba’s acted negligently when it failed to remove the shell 4 fragment while preparing her meal. To bring a negligence claim in Nevada, a plaintiff must show 5 that (1) defendant owed plaintiff an existing duty of care; (2) defendant breached that duty; (3) 6 defendant’s breach was the legal cause of the plaintiff’s injuries; and (4) damages. Turner v. 7 Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 2008). The Court notes that California 8 has held as follows: “it is a question for the trier of fact to determine whether the presence of the 9 injury-producing substance was caused by the failure of the defendants to exercise reasonable care 10 in the preparation of the food, and whether the breach of the duty to exercise such care caused the 11 consumer's injury.” Mexicali Rose v Superior Court, 822 P.2d 1292, 1303 (Cal. 1992). 12 Carrabba’s argues it is entitled to summary judgment because it took all possible 13 care and followed all reasonably necessary steps when preparing Oakes’ dish. Oakes argues that 14 Carrabba’s could not have taken all possible care because it failed to spot and remove the fragment 15 before serving the dish. The Court agrees with California courts on this issue and finds that 16 whether or not Carrabba’s was negligent in failing to remove the shell fragment is a factual 17 question that must be determined following a trial on the merits. In order to determine whether 18 Carrabba’s breached its duty of care, the fact finder must weigh all of the relevant evidence that will 19 be presented at trial. For this reason, the Court denies Carrabba’s Motion for Summary Judgment 20 in regards to Oakes’ negligence claim. 21 22 B. Implied Warranty of Merchantability Oakes also claims that Carrabba’s is liable for violating the implied warranty of 23 merchantability. Under the Nevada Uniform Commercial Code, "there is an implied warranty that 24 a good is merchantable and suitable for a particular purpose." Vacation Vill., Inc. v. Hitachi Am., 25 Ltd., 874 P.2d 744, 747 (Nev.1994) (citing NRS §§ 104.2314-2315). NRS 104.2314 describes 26 merchantable goods as those which “[p]ass without objection in the trade under the contract AO 72 (Rev. 8/82) 3 1 description; and in the case of fungible goods, are of fair average quality within the description; 2 and are fit for the ordinary purposes for which such goods are used.” NRS § 104.2314. 3 Although Nevada does not specifically address this issue, various courts have 4 determined that the implied warranty of merchantability applies to transactions between a 5 restaurant and its customer. Mix v. Ingersoll Candy Co., 59 P.2d 144, 145 (1936). California for 6 example has held that, “upon the sale of food[] by a retail dealer . . . an implied warranty ar[ises] 7 that the commodity [is] reasonably fit for such purpose and the dealer [sh]ould be held liable for 8 damage suffered as the result of eating the food[].” Mix v. Ingersoll Candy Co., 59 P.2d 144, 145 9 (1936). Similarly, North Carolina has held, “a warranty that the goods shall be merchantable is 10 implied in a contract for their sale if the seller is a merchant with respect to goods of that kind . . . 11 [T]he serving of food or drink to be consumed either on the premises or elsewhere is a sale.” 12 Goodman v. Wenco Foods, Inc., 423 S.E.2d 444, 447-48 (N.C. 1992) 13 Three main tests have developed to determine what defines “merchantable” food: 14 the foreign/natural test, the consumer expectations test, and the hybrid test. Mexicali Rose, 822 15 P.2d at 1295-1302. Under the foreign/natural test, a restaurant is liable when it serves food that 16 contains a substance foreign to the type of food (for example a wire) and it is not liable if the 17 substance is natural (for example a bone in a chicken dish). Id. at 1294. The consumer 18 expectations test, on the other hand, bases liability not on whether the substance is foreign to the 19 dish, but whether a consumer could have reasonably expected the substance to be in the dish (for 20 example a half inch bone in a ground beef patty might be natural but not reasonably expected). Id. 21 at 1297-98., Goodman, 423 S.E.2d at 450-51. Finally, other courts including California, have 22 combined the foreign/natural test and the consumer expectations test and follow a hybrid model: 23 24 25 If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective. … By contrast, if the substance is foreign to the food served, then a trier of fact additionally must determine whether its presence (I) could reasonably be expected by the average consumer and (ii) rendered the food 26 AO 72 (Rev. 8/82) 4 1 unfit for human consumption or defective under the theories of the implied warranty of merchantability or strict liability. Id. at 1301-02. 2 The Court notes that Nevada has not indicated which of the tests it follows. At this 3 time the Court does not address which test Nevada would apply because a factual dispute exists 4 that precludes summary judgment in any event. Oakes argues that the food was unmerchantable 5 because the dish contained whole mussel shells, not shell fragments, and she could not have 6 expected a shell fragment in the dish. On the other hand, Carrabba’s argues that the fragment was 7 natural to the dish because the dish contained mussels and mussel shells, and that Oakes should 8 have reasonably expected that shell fragments could be in the dish because it contained mussel 9 shells. Whether the presence of a shell fragment in the dish made the food unmerchantable is a 10 factual determination. It is up to the jury to determine whether Oakes could have reasonably 11 expected a shell fragment in her dish and whether a shell fragment in a dish containing whole 12 shells is “natural.” Accordingly, the Court denies Carrabba’s Motion for Summary Judgment as to 13 this claim. 14 C. Strict Products Liability 15 Finally, Oakes claims Carrabba’s is liable under a theory of strict products liability 16 because her food was defective. “To present a prima facie case for strict liability in tort, a plaintiff 17 must establish that her injuries were caused by a defect in the product, and that the defect existed 18 when the product left the defendant's control.” Madulike v. Agency Rent-A-Car, 1 P.2d 24, 27 19 (1998). The Court notes that the same three tests that apply to the merchantability analysis are also 20 used to determine what constitutes a “defect” for strict liability purposes. Mexicali Rose, 822 P.2d 21 at 1295-1302. 22 The Court denies Carrabba’s Motion for Summary Judgment on this claim. 23 Without addressing which test Nevada is most likely to adopt, the Court finds that a question of 24 fact exists as to whether or not a mussel shell fragment in a pasta dish with mussels constitutes a 25 defect under each of the three tests. Thus, the same basic question of fact that exists as to Oakes’ 26 AO 72 (Rev. 8/82) 5 1 claim for violation of implied warranty of merchantability also pertains to Oakes’ strict products 2 liability claim. The Court therefore denies Carrabba’s Motion for Summary Judgment on this 3 claim. 4 CONCLUSION 5 Accordingly, and for good cause appearing, 6 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (#18) 7 8 is DENIED Dated: July 6, 2010. 9 10 ____________________________________ ROGER L. HUNT Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 6