Bissinger v. Buffet
| Decision Date | 06 June 2014 |
| Docket Number | No. M2011-02183-COA-R9-CV,M2011-02183-COA-R9-CV |
| Parties | AARON BISSINGER, ET AL. v. NEW COUNTRY BUFFET, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
A man who suffered a blood infection after eating raw summer oysters at a Nashville restaurant filed suit against the restaurant, claiming that the oysters were contaminated because they were kept at an improper temperature. The restaurant owner answered, and among other things he named three companies in the supply chain that furnished the oysters to the defendant restaurant as possibly liable under the doctrine of comparative fault. The plaintiff subsequently died, and his executor was substituted as plaintiff. The executor filed an amended complaint that added the suppliers as defendants, and included claims against all the defendants of negligence, negligence per se, product liability, and breach of warranty. All the parties filed motions for summary judgment. The trial court denied the defendant restaurant's motion for summary judgment, but it granted summary judgment to the defendant suppliers on all issues except failure to warn. After studying the voluminous record in this case, we affirm all the trial court's rulings on the summary motions against the restaurant. We affirm the trial court's grant of summary judgment to the suppliers, and reverse the denial of summary judgment to them for failure to warn.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part
Kathryn Elaine Barnett, Christopher Eric Coleman, Jonathan Lewis Williams, Kenneth Sherman Byrd, Nashville, Tennessee, for the appellant, Aaron Bissinger, Executor of the Estate of Randall Bissinger, Deceased.
Warren Maxey Smith, Harold Richard Donnelly, Jack Paul Brewer, Judith Elizabeth Lojek, Nashville, Tennessee; David Jackson Sneed, Franklin, Tennessee for the appellees, New Country Buffet, Shao Chai Chen, individually and d/b/a New Country Buffet, Gulf Pride Seafood of Franklin, LLC, Leavins Seafood, Inc., Bon Secour Fisheries, Inc.
Randall Bissinger went to New Country Buffet Restaurant on or about May 8, 2006. He ordered an "All You Can Eat" buffet meal and selected and consumed three raw oysters from the buffet table. Soon after consuming the oysters, Mr. Bissinger began to experience severe symptoms and illness. His brother took him to the Veterans Administration Hospital, where he was diagnosed with vibrio vulnificus septicemia, a serious blood infection. Vibrio vulnificus is a naturally-occurring bacteria that is found in shellfish that absorb it from their environment.
On September 18, 2006, Mr. Bissinger filed a Complaint in the Circuit Court of Davidson County, naming New Country Buffet and its owner, Shao Chai Chen, as defendants (hereinafter "New Country Buffet" or "the restaurant"). He alleged that the oysters he consumed were contaminated and that they caused his injuries. He asserted a number of causes of action.
It is undisputed that the oysters Mr. Bissinger ate contained vibrio vulnificus, although there was no proof regarding the level of the bacteria in the oysters. It is also undisputed that the bacteria caused Mr. Bissinger to become very ill.
New Country Buffet filed an answer denying that it was guilty of negligence or of any acts or omissions that caused or contributed to Mr. Bissinger's injuries. It also raised the affirmative defense of comparative fault, stating that in the event the proof showed that it was negligent to some degree, its liability had to be reduced by the fault of the companies that supplied the oysters consumed by Mr. Bissinger.
Three suppliers were specifically named as possible third party defendants: Gulf Pride Seafood of Franklin, Tennessee; Leavins Seafood, Inc., of Apalachicola, Florida; and Bon Secour Fisheries, Inc., of Bon Secour, Alabama (collectively, "Suppliers"). Defendant Gulf Pride sold and delivered the oysters in question to New Country Buffet after obtaining them from "processor/wholesalers" Bon Secour and Leavins. It is unclear which of the two wholesalers was the source of the oysters Randall Bissinger consumed.
Randall Bissinger remained in the VA hospital for 143 days and died there on October 20, 2006. Mr. Bissinger's treating physician testified that the vibrio infection had become inactive as of July 2006, and that a staph infection had then set it.
His nephew, Aaron Bissinger ("Bissinger"), was named as his executor, and after filing a suggestion of death in the trial court, he was substituted as plaintiff in the case. Bissinger filed an amended complaint on February 22, 2007, in which he named as additional defendants those parties named in the restaurant's answer. Bissinger asserted that his uncle's death was the result of "vibrio vulnificus primary septicemia caused by his ingestion of oysters." Bissinger also stated that his uncle suffered from hepatitis C and cirrhosis of the liver, was unaware of the dangers of severe injury or death associated with consuming raw oysters, and was unaware that people with liver disease or weakened immune systems were at increased risk of those dangers.1
The three suppliers all filed answers to the amended complaint in which they denied any liability and asked the court to dismiss all the claims against them. The defendants also asserted that under the principles of comparative fault, Randall Bissinger was more than 50% liable for his own injuries, because he knew or should have known that eating raw oysters could cause serious health risks and even death for individuals suffering from his medical conditions.
After taking the depositions Shao Chai Chen, owner of New Country Buffet, and of his wife and brother-in-law, who were both employees of the restaurant, Bissinger filed a second amended complaint. Among other things, he added allegations that almost from its 2005 opening, New Country Buffet was repeatedly cited by the Metro Nashville Public Health Department for violations related to health and safety. Those violations included many identified as "critical" and which involved keeping food (including seafood) at improper temperatures "during storage, preparation, display, service, and transportation." Bissinger also added a claim for punitive damages against New County Buffet and its owners.
Further discovery followed, and Bissinger filed a third amended complaint. After the expiration of deadlines established in case management orders, the defendants attempted to amend their previously-filed answers to name additional parties as partially responsible for Randall Bissinger's injuries under the principles of comparative fault. Their allegations included companies involved in the harvesting and transportation of the oysters that were sold to New Country Buffet and doctors at the VA hospital who hadtreated Randall Bissinger. Bissinger filed motions to strike the amendments, which the trial court granted.
The causes of action alleged in the final complaint that are relevant to this appeal included common law negligence, negligence per se, failure to warn, and breach of the implied warranty that the food Suppliers provided and the restaurant served was reasonably fit for human consumption. The trial court dismissed Bissinger's claim based upon the Tennessee Consumer Protection Act, but that dismissal was not appealed.
Bissinger filed a motion for partial summary judgment, asking the court to find, "as a matter of undisputed fact and law" that the oysters eaten by Randall Bissinger were "defective and unreasonably dangerous," and that they were "adulterated" in accordance with the definition found at Tenn. Code Ann. § 53-1-104 of the Tennessee Food, Drug and Cosmetic Act. In the same month, the defendants all filed their own motions for summary judgment on all issues. New Buffet's motion asserted that there was no specific evidence that the restaurant improperly handled the raw oysters that Randall Bissinger ate. For their part, Suppliers argued there was no breach of duty and that, as a matter of law, Bissinhger could not establish necessary elements of the claims he had brought.
The trial court denied Bissinger's motion for partial summary judgment. The court noted that no Tennessee Court has addressed the question of what constitutes "adulterated food," under Tenn. Code Ann. § 53-1-104, but in reliance on persuasive authority, it held that oysters containing vibrio vulnificus were not adulterated as a matter of law. It also held that such oysters were not defective or unreasonably dangerous.
The trial court granted Suppliers summary judgment on every issue and every theory of recovery that was raised against them, except for the adequacy of their warnings about the dangers of ingesting their products. The court allowed all of Bissinger's remaining claims against the restaurant to stand.
All the parties moved the trial court for permission to file applications for interlocutory appeal of the trial court's summary judgment order. The trial court granted the motions, and this court granted all four applications and consolidated them for appeal.
The standards for decision on a motion for summary judgment are well-known. The trial court may only grant such a motion if the filings supporting the motion show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008); Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). "If there is a dispute as to any material fact or any doubt as to the conclusions to be drawn from that fact, the motion must be...
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