Hogue v. Logan's Roadhouse Inc.
| Decision Date | 02 April 2010 |
| Docket Number | 2090035. |
| Citation | 61 So.3d 1077 |
| Parties | Horace Dale HOGUE et al.v.LOGAN'S ROADHOUSE, INC. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1090996. E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for appellants.Stephen J. Bumgarner, S. Greg Burge, and Edward D. Cotter of Burr & Forman LLP, Birmingham, for appellee.THOMPSON, Presiding Judge.
Horace Dale Hogue, Hallie Hogue, Lavona Elliott, Teresa Hogue, Lisa Franklin, Ricky Hogue, and Nicole Franklin, by and through her next friend, Lisa Franklin (hereinafter referred to collectively as “the plaintiffs”), appeal from a summary judgment entered by the Tuscaloosa Circuit Court in favor of Logan's Roadhouse, Inc. (“Logan's”). For the reasons set forth herein, we affirm the trial court's judgment.
The record, considered in the light most favorable to the plaintiffs, see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990), reveals the following pertinent facts. On the evening of January 14, 2006, a group of approximately 20 people, including the plaintiffs, gathered at a restaurant (“the restaurant”) that, apparently, was owned and operated by Logan's to celebrate the birthdays of Horace Dale Hogue and Diane Brown. As part of the celebration, appetizers were purchased and shared by many in the group. The individuals of the group also ordered entrées from the menu provided by the restaurant and consumed those entrées. During and shortly after the time that the group departed from the restaurant, the plaintiffs and two other individuals who had been present at the celebration began to experience digestive issues, including vomiting and diarrhea. Ultimately, two of the plaintiffs were required to seek medical treatment because of the digestive issues. There is no evidence indicating that the individuals who became ill following the consumption of food at the restaurant all consumed a common food item, although many of those individuals shared the appetizers that were served at the restaurant.
On December 10, 2007, the plaintiffs filed an action against Logan's. They alleged that Logan's had “negligently sold and/or cooked and/or prepared and/or delivered the food consumed by the plaintiffs and/or [had] negligently supervised and/or negligently hired the persons responsible for the cooking and/or preparation and/or delivery of the food consumed by the plaintiffs.” They asserted that, as a result of Logan's alleged negligence, they had suffered physical injuries and damages. The plaintiffs also asserted a claim of wantonness against Logan's.1
On May 18, 2009, Logan's filed a motion for a summary judgment. It asserted, among other things, that there was no evidence indicating that it had committed a negligent act. Specifically, it argued that the duty it owed the plaintiffs was to exercise reasonable care in its selection and preparation of the food it served the plaintiffs and that the plaintiffs had failed to present any evidence indicating that it had breached that duty. The plaintiffs filed a response to Logan's summary-judgment motion. In response to Logan's argument regarding a lack of evidence of a negligent act on its part, the plaintiffs argued, in effect, that they had sufficiently supported their negligence claim by demonstrating that several people had become ill from eating food served by Logan's. They also asserted that
“[w]hether a food poisoning claim against a restaurant is based on [the] Alabama Extended Manufacturer Liability Doctrine, breach of warranty [,] or negligence, there is no Alabama decision which supports the conclusion that a person is not entitled to recover in a food poisoning case where there is evidence that the Plaintiffs' illnesses occurred as a result of being served unwholesome food.”
On August 4, 2009, the trial court granted Logan's motion and entered a summary judgment against the plaintiffs on both the negligence claim and the wantonness claim. The plaintiffs filed a timely notice of appeal to the supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.
The standard by which this court reviews a summary judgment is well settled:
“ ‘ “To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989); § 12–21–12(d)[,] Ala.Code 1975. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘ ’
“ Payton v. Monsanto Co., 801 So.2d 829, 832–33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”
Maciasz v. Fireman's Fund Ins. Co., 988 So.2d 991, 994–95 (Ala.2008). We note that the plaintiffs limit their arguments on appeal to their negligence claim; they do not assert that the trial court erred in entering a summary judgment on their wantonness claim. Thus, we do not address the summary judgment as it relates to the plaintiffs' wantonness claim.
The plaintiffs candidly admit on appeal that they did not present any evidence demonstrating that Logan's was negligent in the preparation of the food that it served them. They argue, however, that such evidence was unnecessary because, they assert, when several people become sick after consuming food at a restaurant, a jury hearing the claim against the restaurant is permitted to infer that something was wrong with the food the restaurant served from the fact of the illnesses. Relying on Louis Pizitz Dry Goods Co. v. Waldrop, 237 Ala. 208, 186 So. 151 (1939), the plaintiffs appear to argue that a restaurant's service of food that causes illness, standing alone, constitutes negligence. They also point out the supreme court's discussion in Flagstar Enterprises, Inc. v. Davis, 709 So.2d 1132 (Ala.1997), relating to the Alabama Extended Manufacturer's Liability Doctrine (“AEMLD”) in which the supreme court indicates that a claim under the AEMLD is supported by evidence demonstrating that a product is defective when it does not meet the reasonable expectations of the person to whom the product is sold. They argue that, because the food they purchased and consumed at the restaurant made them ill, it did not meet their reasonable expectations, and, therefore, that it was defective. They argue that the trial court erred “in requiring the plaintiffs to show a negligent act on the part of the defendant other than showing that it served tainted food.”
We turn first to the plaintiffs' assertion of standards applicable to claims asserted pursuant to the AEMLD. The AEMLD is Alabama's version of products-liability law. Pursuant to the AEMLD, “ ‘a plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer....’ ” Ex parte Morrison's Cafeteria of Montgomery, Inc., 431 So.2d 975, 977 (Ala.1983) (quoting Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala.1976)). “The term ‘defective’ means that the product fails to meet the reasonable safety expectations of an ‘ordinary consumer,’ that is, an objective ‘ordinary consumer,’ possessed of the ordinary knowledge common to the community.” Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991).
In their complaint, the plaintiffs asserted only two claims against Logan's: negligence and wantonness. They did not assert a claim against Logan's arising under the AEMLD. Thus, we find the AEMLD standards inapplicable to the plaintiffs' claim before this court on appeal.
We turn now to the plaintiffs' negligence claim. In McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446 (1934), our supreme court discussed at length the proper standard applicable to negligence claims arising from a restaurant's service of food, the consumption of which causes illness:
“Plaintiff's cause proceeded to trial upon counts 1 and 4, which, as a basis for recovery, rest upon the negligence of defendant in failing to exercise a proper degree of care in the selection and preparation of the food served to her in defendant's place of business. Such degree of care has been here defined as follows: ‘ The law requires that, in the selection of the food for his restaurant and in cooking it for his customers, he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table.’ Travis v. Louisville & Nashville R.R. Co., 183 Ala. 415, 62 So. 851, 854 [ (1913) ].
“Our decisions have recognized that in some jurisdictions the doctrine of implied warranty applies (26 C.J. p. 786); but this court has not followed in the wake of these authorities, consistently adhering to the rule of liability resting upon the exercise of due care as above defined. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419 [ (1931) ]; Greenwood Cafe v. Lovinggood, 197 Ala. 34, 72 So. 354 [ (1916) ]; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53 [ (1927) ]; Louisville &...
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