Clime v. Dewey Beach Enterprises, Inc., Civ. A. No. 92-279

• Decision Date: 20 August 1993
• Docket Number: 92-367 MMS.,Civ. A. No. 92-279
• Citation: 831 F. Supp. 341
• Parties: John P. CLIME, Plaintiff, v. DEWEY BEACH ENTERPRISES, INC., d/b/a Rusty Rudder Restaurant, Defendant and Third-Party Plaintiff, Copp's Seafood, Defendant and Third-Party Defendant.
• Court: U.S. District Court — District of Delaware

831 F. Supp. 341

John P. CLIME, Plaintiff, v. DEWEY BEACH ENTERPRISES, INC., d/b/a Rusty Rudder Restaurant, Defendant and Third-Party Plaintiff, Copp's Seafood, Defendant and Third-Party Defendant.

Civ. A. Nos. 92-279, 92-367 MMS.

United States District Court, D. Delaware.

August 20, 1993.

Marla Rosoff Eskin, of Jacobs & Crumplar, Wilmington, DE (Michael D. Fishbein of Levin, Fishbein, Sedran & Berman, Philadelphia, PA, of counsel), for plaintiff.

Michael P. Joseph of Ferry, Joseph & Fink, P.A., Wilmington, DE (Donald C. Allen, of Allen, Johnson, Alexander & Kapp, Baltimore, MD, of counsel), for defendant and third-party plaintiff.

Roy S. Shiels of Brown, Shiels & Chasanov, Dover, DE, for defendant and third-party defendant.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

I. INTRODUCTION

Plaintiff John P. Clime became ill after eating clams in the Rusty Rudder Restaurant located at Dewey Beach, Delaware. Thereafter, he brought suit, sounding in negligence and breach of implied warranty of merchantability against Dewey Beach Enterprises, Inc. d/b/a Rusty Rudder Restaurant "Rusty Rudder" and the supplier of the clams, Copp's Seafood. The Rusty Rudder filed a Third Party Complaint against Copp's seeking contribution and indemnity. The Rusty Rudder and Copp's now request this Court enter summary judgment against plaintiff. Copp's also asks this Court enter summary judgment in favor of it on the Rusty Rudder's claim for indemnification on the issue of implied warranty of merchantability. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332 (1988).

II. BACKGROUND

On July 27, 1990, plaintiff went to the Rusty Rudder Restaurant and ate from the buffet. Docket Item "D.I." 72 at 501(b)-02(b). He arrived early and approached the raw bar just as the attendant began shucking the clams. Id. at 507(b). The unshucked clams were in a box or burlap bag that was on the floor beside the employee. Id. at 511(b). The attendant placed the clams on ice as he shucked them, and plaintiff served himself from there. Id. at 510(b). Copp's Seafood was the Rusty Rudder's clam supplier at the time. Id. at 611(b).

Within days plaintiff was admitted to the hospital and later diagnosed as having vibrio septicemia, the apparent cause of which was ingestion of the bacteria vibrio vulnificus, an organism often contained in raw shellfish. Id. at 122(b)-23(b), 147(b)-48(b), 517(b)-520(b). Expert testimony reveals that most people need not fear ingestion of the bacteria by reason of eating raw shellfish as they face, at worst, mild digestive tract discomfort. However, some individuals, those with compromised immune systems or cirrhosed livers, may suffer a much more debilitating form of infection known as vibrio septicemia. Id. at 126(b)-29(b). Plaintiff, an alcoholic with cirrhosis of the liver, D.I. 61 Ex. E at 4-10, suffered this more serious injury.

III. STANDARD FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56(c) summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Fed.R.Civ.P. 56(c). Summary judgment will not be entered where there exists a genuine and material issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is genuine if a "reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. A fact is material if, under the relevant substantive law, determination of such fact might affect the outcome of the case. Id.

The Court should refrain from making credibility determinations in deciding if there exists a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It should instead draw all inferences in favor of the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). If the movant demonstrates the absence of a genuine issue of material fact, however, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts" to prevent its entry. Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56. The non-movant must do more than provide a mere scintilla of evidence supporting his or her case. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512.

The moving party has the initial burden of identifying those parts of the pleadings, depositions, answers to interrogatories, admissions and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The non-movant then has the burden of demonstrating the presence of a genuine issue of material fact. If the non-movant is the party who will bear the burden of proof at trial, that party must show it will not be impossible for him or her to establish the existence of that element essential to his or her case which has been challenged by the movant. Id. at 322-23, 106 S.Ct. at 2552-53; Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988). If the non-movant fails to do so, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

IV. DISCUSSION

Plaintiff has brought suit against the Rusty Rudder and Copp's alleging both negligence and breach of the implied warranty of merchantability.¹ At oral argument plaintiff advised the Court that he had abandoned his claim of negligence against Copp's. There is left plaintiff's claim of negligence against the Rusty Rudder, plaintiff's claim for breach of the implied warranty against both the Rusty Rudder and Copp's, and the Rusty Rudder's claim against Copp's for indemnity on the issue of breach of the implied warranty.

A. NEGLIGENCE

To prove his negligence claim against the Rusty Rudder plaintiff must show it owed a particular duty to plaintiff, defendant breached that duty and defendant's breach caused injury to plaintiff. Here the Rusty Rudder challenges plaintiff's ability to demonstrate a breach of duty and causation. The argument as to duty focuses on the characteristics of vibrio vulnificus and the necessity for care in the handling of clams to meet the potential danger posed by the bacteria. Defendant's argument as to causation is not that plaintiff's illness was unrelated to the ingestion of vibrio vulnificus. Instead, it asserts that notwithstanding such relationship the true cause of plaintiff's illness was the cirrhotic condition of his liver caused by alcohol abuse.

1. Duty

Plaintiff alleges the Rusty Rudder was negligent in failing to maintain the clams eventually ingested by plaintiff under refrigerated conditions at all times. Under plaintiff's theory of the case in order to prove defendant owed a duty to him, plaintiff must show: (1) the bacteria vibrio vulnificus is potentially harmful to humans if ingested; (2) the potential health risk posed by any vibrio vulnificus occurring naturally in clams is increased by storing clams above approximately forty-five degrees fahrenheit; and (3) a person of ordinary prudence would store clams at or below such temperatures at all times in order to avoid the potential harmful effects of the bacteria.

Defendant challenges plaintiff's ability to establish defendant owed plaintiff a duty of care to store the clams below approximately forty-five degrees fahrenheit. According to defendant no reasonable jury could find the clams should have been stored this way because there is nothing in the evidentiary record to support plaintiff's assertion that storage above approximately forty-five degrees increases potential health risks to humans upon ingestion. Defendant is incorrect. The Rusty Rudder's appendix contains a report by plaintiff's expert Marvin E. Winston that specifically states, "Mishandling of raw clams by storing above forty-five degrees fahrenheit will allow growth of the vibrio vulnificus and increase the potential for risk to human health." D.I. 61 Ex. F.² In addition, the Rusty Rudder's expert Dr. Morris testified the industry practice is to refrigerate shellfish at approximately forty-five degrees fahrenheit right up until the time the customer ingests them. D.I. 72 at 157(b)-59(b). Furthermore, state health regulations require shellfish suppliers to maintain their stock at fifty degrees fahrenheit or below and public eating places are required to refrigerate clams at or below forty-five degrees. D.I. 72 at 312b-315b.

The record contains evidence from which a jury could find defendant owed a duty to plaintiff to maintain the clams eventually eaten by plaintiff at or below approximately forty-five degrees fahrenheit up until the point plaintiff received them. Summary judgment will not be granted to defendant on this ground.³

2. Breach of Duty

In order for plaintiff to prevail against the Rusty Rudder at trial he will have to show defendant breached its duty to plaintiff by failing to store the clams eaten by plaintiff at or below approximately forty-five degrees fahrenheit. Defendant asserts it is entitled to summary judgment because there is...