Hoch v. Venture Enterprises, Inc.
| Decision Date | 20 June 1979 |
| Docket Number | 77-61.,Civ. No. 77-60 |
| Citation | 473 F. Supp. 541 |
| Parties | Stephen G. HOCH, Plaintiff, v. VENTURE ENTERPRISES, INC., d/b/a Daddy's Restaurant, Defendant. Joseph GUBERNICK, Plaintiff, v. VENTURE ENTERPRISES, INC., d/b/a Daddy's Restaurant, Defendant. |
| Court | U.S. District Court — Virgin Islands |
James E. Dow, Jr., Pallme, Anduze, Mitchell & Dow, Charlotte Amalie, St. Thomas, V. I., for plaintiffs.
Joel W. Marsh, Charlotte Amalie, St. Thomas, V. I., for defendant.
This matter is before the Court on the motion of Lynda Hoch, wife of plaintiff, Stephen Hoch, for leave to amend the complaint and the motion of plaintiffs, Stephen Hoch and Joseph Gubernick, for entry of partial summary judgment in their favor on the issue of liability. For the reasons set forth below, Lynda Hoch's motion for leave to file an amended complaint shall be granted, and plaintiffs, Stephen Hoch and Joseph Gubernick's motion for partial summary judgment shall be denied.
This lawsuit stems out of an alleged case of fish poisoning suffered by plaintiff after consuming native hind fish at defendant's restaurant, Venture Enterprises, Inc., d/b/a Daddy's Restaurant (hereafter "Daddy's"). Plaintiffs, their wives and two other couples went to Daddy's for dinner on the evening of March 4, 1976. Stephen Hoch and Joseph Gubernick ordered the native hind fish, all the other members of the group ordered non-fish dinners. The dinners were served at approximately 10:00 p. m. and another member of the group, Alice Fioto, tasted a small amount of the native hind fish served to Gubernick. Around 1:00 a. m. the following morning, Gubernick and Hoch became ill, suffering stomach cramps, nausea, diarrhea malaise and a severe sensitivity to temperature changes. When the symptoms persisted, plaintiffs went to the emergency room at Knud Hansen Hospital where they were diagnosed and treated by Dr. Harold Hanno. Dr. Hanno diagnosed the plaintiffs as demonstrating symptoms of "typical ciguatera poisoning." Later, Alice Fioto reported that she felt slightly nauseous and suffered diarrhea the morning of March 5, 1976. Plaintiffs subsequently brought this suit against the Daddy's on the theory that Daddy's breached its express and implied warranty that the fish was wholesome and fit for human consumption.
Pursuant to Fed.Rule of Civil Procedure 15(c) Lynda Hoch, wife of plaintiff, Stephen Hoch, seeks leave to amend the complaint to assert a cause of action for loss of consortium. Lynda Hoch recognizes that this action normally would be barred under the applicable statute of limitations period, but argues that her claim should relate back to February 25, 1977, the date the original complaint was filed, relying on Rule 15(c). Defendant does not oppose this motion.
Rule 15(c) provides in pertinent part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.
In the matter sub judice, the loss of consortium claim is based upon the same allegations of negligence contained in Stephen Hoch's complaint. Thus, defendant has been given the notice that the statute of limitations is intended to afford and will not suffer prejudice by the amendment. See e. g. Hockett v. American Airlines, Inc., 357 F.Supp. 1343 (N.D.Ill.1973) (). Accordingly, Lynda Hoch's motion for leave to amend the complaint shall be granted and her claim shall relate back to the date of the original pleading for purposes of the limitation period.
Plaintiffs move for entry of partial summary judgment in their favor on the issue of liability and assert three theories of liability in support, to wit: breach of defendant's express and implied warranty that the fish was fit for human consumption, and negligence per se relying on a safety regulation which prohibits the sale of contaminated food to the public.1 Defendant opposes said motion, arguing that material issues of fact are in dispute as to the issue of proximate causation; whether the cooked fish was unfit within the meaning of § 2-314 of the Uniform Commercial Code (hereafter U.C.C.) and whether the assumption of risk defense is applicable under the facts in the instant case.
After carefully reviewing the memoranda of the parties and their supporting affidavits and documents, I conclude that there are material issues of fact which will be necessary for the jury to decide. First of all, on the record before me, I cannot find that plaintiffs have conclusively established the element of proximate causation. Rather, under the case authority2 cited by plaintiff, plaintiff has merely demonstrated that there is sufficient evidence in the matter sub judice to submit the issue of proximate cause to the jury. Moreover, defendant raised further grounds on the issue of causation, to wit: (1) no other claims or legal actions allegedly devolving from ciguatera fish poisoning have been brought against defendant with respect to other hind fish dinners served on March 4, 1976;3 (2) where poisoning is alleged from food which is not outwardly deleterious, a plaintiff assumes a greater burden in proving causation; (3) because there is large individual variation in symptoms of ciguatera victims, it is possible that plaintiffs suffered a delayed reaction from some other food.
Judge Christian's recent decision in Battiste v. St. Thomas Diving Club, 1979 St. Thomas Supp. 164 (D.C.V.I.197...
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...claim was filed. See, e.g., Costello v. Balzarini, 2005 U.S. Dist. LEXIS 10392, at *4 (D.Vt. May 24, 2005); Hoch v. Venture Enters., Inc., 473 F.Supp. 541, 542 (D.Vi.1979); see also 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1688 (3d ed.2001). ......
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