by: Peter J. Gallagher (@pjsgallagher)
Not too long ago, I posted about a lawsuit filed by a diner against Applebees. (Click here if you don't remember.) In that case, the diner was allegedly burned after he leaned over a plate of sizzling fajitas for a pre-meal prayer. He sued, alleging that the hot plate was a dangerous and hazardous condition. Applebees argued that even if this was true, the dangerous condition was open, obvious, and easily understood, therefore it could not be liable for any damages that resulted from it. The court agreed and granted summary judgment in favor of Applebees.
Now comes another case where a diner was injured at a casual dining restaurant. This one, Clark v. Darden Restaurants, Inc., involved Red Lobster. In Clark, plaintiff was dining with a friend at Red Lobster. He was injured when their server dropped a plate on the table, causing the plate to shatter. Shards from the shattered plate punctured plaintiff's eyes. According to the court, the "evidence against the restaurant was damning." The server admitted that the plate was "slippery" and "greasy" and that he did not handle it properly. In light of this one-sided evidence, plaintiff moved for summary judgment, "invoking the familiar tort doctrine of res ipsa loquitur." He won, and Red Lobster appealed.
The Third Circuit began its decision by acknowledging a play on words and then offering its own play on that play of words: "Sea Food differently Red Lobster advertises in its play on words. [Plaintiff] forever will." (Get it? "Sea food," not "see food" (because Red Lobster is a seafood restaurant), but plaintiff will not "see food" (not "sea food") the same way again because of the damage to his eyes.) It then turned to the substance of the case. Under the doctrine of res ipsa loquitur, a jury may infer that a defendant was negligent where: "(1) the incident at issue ordinarily shows negligence, (2) the cause of the plaintiff's injury was within the defendant's exclusive control, and (3) there is no indication that the plaintiff was at fault for his injuries." Red Lobster conceded that plaintiff satisfied the last two elements, but claimed that there was no evidence to support the first one. The Third Circuit was not persuaded.
First, Red Lobster argued that an incident "connotes negligence only where the plaintiff offers evidence that the injuries incurred couldn't have occurred without negligence" (emphasis in original). Since plaintiff did not offer an evidence to that effect, Red Lobster argued that the district court erred in granting summary judgment. The Third Circuit rejected this argument, holding that an incident "ordinarily appears negligent," not where it "couldn't have occurred absent negligence" (emphasis in original), but where the "probabilities fall in favor of negligence such that an inference [in favor of negligence] is appropriate." The Third Circuit then concluded that the "probabilities clearly [did fall in favor of negligence], as no reasonable, similarly situated server should have handled the plat as the server did."
Second, Red Lobster argued that the question of negligence should have gone to the jury. According to Red Lobster, res ipsa loquitur "permits an inference of negligence to be made by a jury that can satisfy a plaintiff's burden of proof and enable [him or her] to survive a motion to dismiss at the close of [his or her] case," but it does not allow a court to take the "more aggressive measure" of taking the issue of negligence away from the jury. The Third Circuit acknowledged that this was an accurate statement of the law, but that it "paint[ed] but a partial picture." In opposition to any summary judgment motion, the non-moving party must produce credible evidence to rebut an inference of negligence. All that Red Lobster did was claim that the server could have accidentally, rather than negligently, dropped the plate. The Third Circuit held that this "mere denial of negligence" was not enough to defeat summary judgment, especially where plaintiff had offered "ample uncontroverted evidence" demonstrating that the server had breached the duty of care.
Be sure to check back here often for all the latest news on injuries sustained while dining — or, more accurately based on the two cases I have blogged about, before actually dining — at casual dining establishments.
[NOTE: When I hear res ipsa loquitur, which is not a doctrine I encounter much in my practice, I immediately think of a case I read in law school when the doctrine was introduced, which involved a a bag of grain that fell on someone's head but neither plaintiff nor any witnesses could testify to any specific conduct from the individual defendant that caused the incident. I don't remember the name of the case or anything else about it, but res ipsa loquitur will forever be tied in my mind to falling bags of grain. Incidentally, to satisfy my own curiosity, I looked the case up. It is Byrne v. Boadle, an English case from 1863 .]
Pete's Take 