Goins v. Wendy's Intern., Inc., 910197
| Decision Date | 08 November 1991 |
| Docket Number | No. 910197,910197 |
| Citation | 242 Va. 333,410 S.E.2d 635 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,972 Rebecca G. GOINS v. WENDY'S INTERNATIONAL, INC. Record |
| Court | Virginia Supreme Court |
David B. Rheingold, Richmond, for appellant.
Robert L. Cox, Jr., Richmond (H. Aubrey Ford, III, Rilee, Cantor & Russell, on brief), for appellee.
Present: All the Justices.
In this action, the plaintiff alleged that she contracted food poisoning from food consumed in the defendant's restaurant. The sole issue on appeal is whether the trial court erred in admitting the defendant's evidence of the absence of other complaints.
Rebecca G. Goins sued Wendy's International, Inc. (Wendy's), to recover damages allegedly sustained when she consumed tainted food in a Wendy's restaurant. Prior to trial, Goins filed a motion in limine seeking to prevent Wendy's from introducing into evidence the testimony of two restaurant employees that they had received no other complaints of food poisoning relating to food served by the restaurant on the day Goins consumed the allegedly tainted food. The trial court denied the motion and permitted the introduction of the challenged evidence.
The case was submitted to a jury on the issue whether Wendy's had breached an implied warranty of merchantability by serving food that was unsafe for human consumption. The jury returned a verdict for Wendy's, and the trial court entered a judgment thereon. Goins appeals.
On the evening of June 9, 1989, Goins ate from a Wendy's restaurant's cold salad bar. Approximately an hour and fifteen minutes later, Goins became violently ill with vomiting and diarrhea. Later that evening, she was admitted to a hospital where she remained for two days.
On the day Goins was released from the hospital, she was examined by a physician. The doctor testified that Goins's illness probably was the result of food poisoning caused by something she had eaten at the Wendy's restaurant.
The restaurant's manager testified that, although approximately 117 food bar meals were sold on June 9, 1989, he was not aware of any other complaints about the food. The manager admitted that he did not know the names of everyone who came into the restaurant that evening, that it was virtually impossible to track down the customers, that he did not know which food items each customer ate, and that he did not know how many persons ate about the time Goins did. The restaurant's shift manager also testified that she received no complaints about food other than from Goins.
Goins contends that the trial court committed reversible error in admitting into evidence the testimony of the restaurant's manager and shift manager. Wendy's contends that, because Goins's case rests solely upon circumstantial evidence, "Wendy's certainly should be allowed to offer circumstantial evidence in rebuttal." We do not agree with Wendy's.
It is firmly established that evidence of the absence of other injuries is not admissible in a negligence action when timely objection to it is made. Sykes, Adm'r v. Railway Company, 200 Va. 559, 564-65, 106 S.E.2d 746, 751 (1959); Sanitary Gro. Co. v. Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685, 687 (1945). Such evidence introduces into the trial collateral issues, remote to the issue at...
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...absence of other injuries is not admissible in a negligence action when timely objection to it is made.” Goins v. Wendy's Int'l, Inc. , 242 Va. 333, 335, 410 S.E.2d 635, 636 (1991). State argues that such evidence may be admissible in a products liability case, but that at any rate, no such......
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