EMAIL TO A FRIEND COMMENT

 

Circumstantial Evidence of Defect and Cause Sufficient to Overcome Motion for Judgment Notwithstanding the Verdict in Food Poisoning Case


The plaintiff dined at a restaurant with a group of people and ordered grilled chicken, rice, and a baked potato. He noted deficiencies in the quality of the chicken such as a strange aftertaste, sticking to the plate, and dryness. No other member of the group ate chicken.  The man ate nothing but the restaurant meal the entire day. Twelve hours after consuming the chicken, the man suffered severe diarrhea and vomiting. Two days later he was admitted to the hospital where he was treated for seven days. His treating physician conducted various tests which eliminated other possible causes of the man’s illness leading the physician to conclude that the likely cause was food poising from the chicken.  

 

The man sued the restaurant for negligence and breach of an implied warranty of merchantability for serving him the tainted chicken. At trial, the jury found in favor of the restaurant on the negligence claim, but in favor of the man on the breach of implied warranty of merchantability claim and awarded him damages. The restaurant filed a motion requesting a judgment notwithstanding the verdict, which the trial judge denied. The restaurant appealed. 

 

The restaurant argued that the plaintiff failed to present adequate evidence that a breach of implied warranty of merchantability occurred. To establish a breach of an implied warranty of merchantability, a plaintiff must show that (1) the goods in question were subject to an implied warranty of merchantability; (2) the goods were defective at the time of the sale and as such did not comply with the warranty; (3) the resulting injury was due to the defective nature of the goods; and (4) damages were suffered. Specifically, the restaurant argued that the man failed to present adequate evidence that the chicken was defective and his injury was caused by the allegedly defective chicken. Additionally, the restaurant argued that the man failed to present competent expert medical testimony regarding whether his injury was caused by the allegedly defective chicken.  

 

The court of appeals affirmed, holding that the plaintiff presented adequate evidence that the chicken was defective and his injury was caused by the chicken and the medical testimony was adequate. The court noted that evidence of the presence of a peculiar taste in food has some probative significance on the issue of whether the food was unwholesome and if it was the cause of a subsequent illness of a person eating it. The plaintiff’s circumstantial evidence that he ate nothing but food from the restaurant in the day prior to the illness; the chicken had a strange aftertaste, stuck to the plate, and was dry; the illness commenced twelve hours after consuming the chicken; and his treating physician concluded the chicken was the likely cause of the man’s illness, after conducting tests which eliminated alternative causes, was adequate evidence that the chicken was defective and his injury was caused by the chicken. The testimony of the man’s treating physician was adequate competent medical testimony especially because the doctor had conducted tests and eliminated alternative causes of the man’s illness.

 

See: Williams v. O'Charley's, Inc., 2012 WL 2285032 (N.C.App., June 19, 2012) (not designated for publication).

 

 

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