Bronson v. Club Comanche, Inc.
| Decision Date | 29 June 1968 |
| Docket Number | Civ. No. 109-1967. |
| Parties | Ann BRONSON and Roger Bronson, Plaintiffs, v. CLUB COMANCHE, INC., Defendant. |
| Court | U.S. District Court — Virgin Islands |
James, Hodge & Tonkin, Christiansted, V. I., for plaintiff; Ronald H. Tonkin, Christiansted, V. I., of counsel.
Young, Isherwood, Gibbs & Carney, Christiansted, V. I., for defendant; Robert Carney, Christiansted, V. I. of counsel.
OPINION ON MOTION FOR NEW TRIAL
The plaintiffs, Ann Bronson and her husband Roger Bronson, brought this action against the defendant Club Comanche, Inc., for compensation for pecuniary loss and for damages resulting from fish poisoning suffered by Mrs. Bronson after eating fish in defendant's restaurant. The case was tried to a jury. At the trial Mrs. Bronson testified that she had been invited, with others, on March 4, 1967 to dine at defendant's restaurant in Christiansted; that she ordered a fish platter and when it was served she did not know or have any means of knowing that the fish was poisonous; that she became violently ill that night and suffered severe pain, vomiting and diarrhea; that she lost her appetite, was unable to properly eat or digest her food for a long time thereafter and lost considerable weight; and that she was considerably weakened and unable to attend to her duties connected with her work and as a housewife. Upon cross-examination, Mrs. Bronson, who has resided in the Virgin Islands since 1948, admitted that she was aware that other persons had contracted fish poisoning in the Virgin Islands.
Mrs. Bronson was treated by Dr. Magda G. Pendall, who was called as a witness by the plaintiffs. Dr. Pendall testified in respect to Mrs. Bronson's illness and described the symptoms and results. The diagnosis was that Mrs. Bronson had suffered from fish poisoning resulting from eating fish carrying a toxin which Dr. Pendall identified as "ciguatera fish poison", a serious and sometimes fatal disease.
It appears that occasional individual fish of certain species in the Caribbean and Pacific areas carry the toxin. The disease is characterized by nausea, vomiting, diarrhea, cramps in the extremities, muscle weakness, sweating, chills and fever. The skin becomes flushed, there is a tingling and severe itching, metallic or peppery taste in the mouth, a generalized inability to coordinate, and a general complaint of hot objects being cold and cold objects being hot. In severe cases, loss of speech, respiratory and body paralysis, coma and death may result. When the poison does exist in a particular fish, neither care in the handling or selection of the fish reveals the presence of the toxin, nor does cooking destroy the poison.1
The theory of the plaintiffs' suit was that the defendant breached its implied warranty that the fish served was clean, wholesome, free from harmful and injurious foreign substances and fit for human consumption. The theory of the defense was that Mrs. Bronson, in ordering a fish platter in defendant's restaurant, had assumed the risk since as a long time resident of St. Croix she knew that occasionally persons eating fresh fish do suffer from fish poisoning. I submitted the case to the jury on these two general theories. The jury rendered a verdict for the defendant and judgment was thereupon entered dismissing the plaintiffs' action on the merits.
The plaintiffs have filed a motion for a new trial, asserting that I erred in charging the jury that if they found that Mrs. Bronson had knowingly assumed the risk of eating fish carrying the ciguatera poison it would be a good defense to the action. Assuming that my charge on assumption of risk was erroneous they urge that I should have directed a verdict for the plaintiff on the question of liability. I have carefully considered these contentions but find no merit in them.
This action is based upon the liability of the defendant who, as a vendor of food, is deemed by statute to have impliedly warranted the fish to be wholesome and fit for human consumption. This liability is defined by section 2-314 of the Virgin Islands Uniform Commercial Code, Title 11A, V.I.C., which provides, in pertinent part:
The implied warranty of a restaurant keeper under the statute is that the food he serves his customers is wholesome, contains no deleterious substances and is fit for human...
To continue reading
Request your trial
-
Gregory v. White Truck & Equipment Co., Inc.
...Products: Abnormal Use, Contributory Negligence, and the Assumption of Risk, 25 Vander L.Rev. 93 (1972); Bronson v. Club Comanche, Inc. (D.C.Virgin Islands 1968), 286 F.Supp. 21, 5 U.C.C.Rppr. 694. (Citing 4 A.L.R.3rd 501 at 510--511); Erdman v. Johnson Bros. Radio & Television Co., Inc., s......
-
Kilpatrick v. Superior Court (Holiday Inns, Inc.), A051001
...theory of recovery. (See Scheller v. Wilson Certified Foods, Inc. (App.1976) 114 Ariz. 159, 559 P.2d 1074, 1076; Bronson v. Club Comanche, Inc. (D.V.I.1968) 286 F.Supp. 21, 23; Rest.2d Torts, supra, § 402A, com. m, pp. 355-356.) The test is the same for both: is the food reasonably fit for ......
-
Hoch v. Venture Enterprises, Inc.
...be contaminated by fish poisoning. There is yet a third basis on which to premise denial of plaintiff's motion. In Bronson v. Club Comanche, Inc., 286 F.Supp. 21, 6 V.I.R. 683 (D.C.V.I.1968), an action was brought against Club Comanche for alleged fish poisoning suffered after plaintiffs co......
-
Viger v. Commercial Ins. Co. of Newark
...condition or of the facts which make it likely to be dangerous. 7. Nothing in Judge Maris' opinion in Bronson v. Club Comanche, Inc., 6 V.I. 683, 286 F.Supp. 21 (D.V.I. 1968) would indicate a different result from that reached here. That case, also involving ciguatera poisoning, was brought......