798 A.2d 583 (N.H. 2002), 2001-032, Palmer v. Nan King Restaurant, Inc.

Docket Nº:2001-032.
Citation:798 A.2d 583, 147 N.H. 681
Opinion Judge:NADEAU, J.
Party Name:Georgia PALMER v. NAN KING RESTAURANT, INC.
Attorney:Winer and Bennett, LLP, of Nashua (Peter G. Webb on the brief and orally), for the plaintiff., Kenna, Johnston & Sharkey, P.A., of Manchester (Richard F. Johnston on the brief and orally), for the defendant. Winer and Bennett, LLP, of Nashua (Peter G. Webb on th brief and orally), for the plaint...
Case Date:May 07, 2002
Court:Supreme Court of New Hampshire
 
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Page 583

798 A.2d 583 (N.H. 2002)

147 N.H. 681

Georgia PALMER

v.

NAN KING RESTAURANT, INC.

No. 2001-032.

Supreme Court of New Hampshire.

May 7, 2002.

Argued: Feb. 13, 2002.

Page 584

[147 N.H. 682] Winer and Bennett, LLP, of Nashua (Peter G. Webb on the brief and orally), for the plaintiff.

Kenna, Johnston & Sharkey, P.A., of Manchester (Richard F. Johnston on the brief and orally), for the defendant.

Page 585

NADEAU, J.

The plaintiff, Georgia Palmer, appeals from an order of the Superior Court (Hollman, J.) granting summary judgment to the defendant, Nan King Restaurant, Inc. The trial court's decision was based upon the conclusion that the plaintiff, seeking recovery for emotional distress under a traditional negligence theory, was unable to demonstrate that her emotional injury was also accompanied by some physical manifestation. We affirm in part and remand in part.

For the purposes of summary judgment, the trial court found the following relevant facts. On April 25, 1997, the plaintiff purchased food for take-out from the defendant. While eating the food, the plaintiff bit into a used "band-aid." The plaintiff experienced physical and mental revulsion, as well as "extreme anxiety" that she may have contracted an infectious disease.

Several days later, the plaintiff visited her doctor and communicated her concern that she might have contracted an infectious disease. Her doctor attempted to alleviate her anxiety, telling her that it was "highly unlikely" that she would contract an infectious disease from this incident. The plaintiff tested negative for both the human immunodeficiency virus (HIV) and hepatitis. Nevertheless, the plaintiff's doctor contemporaneously described the plaintiff as "having anxiety and being emotionally distraught ...." The plaintiff made no additional claim that she suffered any physical injury.

The plaintiff subsequently filed suit, alleging negligence, products liability and breach of warranty claims. The defendant moved for summary judgment and on November 15, 2000, the trial court granted the motion, finding that there was no evidence that the plaintiff had experienced any physical injury resulting from her anxiety. The plaintiff filed motions for reconsideration, which the trial court denied on December 13, 2000. This appeal followed.

In reviewing a grant of summary judgment, we look at the affidavits...

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