Manley v. Doe

• Decision Date: 02 February 2012
• Docket Number: No. 7:10–CV–154–D.,7:10–CV–154–D.
• Citation: 849 F.Supp.2d 594,76 UCC Rep.Serv.2d 761
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: John D. MANLEY and Karen Manley, Plaintiffs, v. John DOE, et al., Defendants.

849 F.Supp.2d 594

76 UCC Rep.Serv.2d 761

John D. MANLEY and Karen Manley, Plaintiffs,

v.John DOE, et al., Defendants.

No. 7:10–CV–154–D.

United States District Court,

E.D. North Carolina,

Southern Division.

Feb. 2, 2012.

Ronald C. Dilthey, Patterson Dilthey LLP, Raleigh, NC, for Plaintiffs.

Carolyn C. Pratt, Regan Summerlin Toups, Cranfill Sumner & Hartzog, LLP, Wilmington, NC, for Defendants.

ORDER

JAMES C. DEVER III, Chief Judge.

On June 30, 2010, plaintiffs John D. and Karen Manley (“Manleys” or “plaintiffs”) filed a complaint against Wendy's International, Inc., (“Wendy's” or “defendant”) and First Sun Management Corporation (“First Sun” or “defendant”) (collectively, “defendants”) in New Hanover County Superior Court [D.E. 1]. Not. of Removal, Ex. 2 (“State Court File”) 14.¹ On August 9, 2010, defendants removed the case to this court based on diversity jurisdiction. On December 15, 2010, defendants sought judgment on the pleadings [D.E. 14]. Plaintiffs responded in opposition and sought leave to amend their complaint [D.E. 16, 18]. This court granted plaintiffs' motion to amend and denied defendants' motion for judgment on the pleadings as moot [D.E. 32]. On May 13, 2011, plaintiffs lied an amended complaint [D.E. 33]. In the amended complaint, John Manley seeks to recover for damages incurred as a result of defendants' alleged breach of an implied warranty of merchantability and negligence, and Karen Manley brings a derivative claim for loss of consortium. Am. Compl. [D.E. 33] ¶¶ 35–49. The dispute arises out of a two-inch plastic fragment removed from John Manley's lung in September 2009. On May 27, 2011, defendants filed a motion to dismiss plaintiffs' amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [D.E. 34] and a supporting memorandum [D.E. 35]. On June 17, 2011, plaintiffs responded in opposition [D.E. 41]. On November 15, 2011, defendants filed a motion for summary judgment [D.E. 44] and a supporting memorandum [D.E. 45]. On December 6, 2011, plaintiffs responded in opposition to defendants' summary judgment motion [D.E. 46]. As explained below, the court grants defendants' motion for summary judgment and denies as moot defendants' motion to dismiss.

I.

The Manleys are residents of New Hanover County, Norm Carolina. Am. Compl. ¶¶ 1–2; Manley Dep. [D.E. 44–8] 8. During February and March 2007, plaintiff John Manley purchased food from a Wendy's restaurant located at 350 South College Road, Wilmington, North Carolina (“restaurant”). Am. Compl. ¶ 22; Manley Dep. 128–29. First Sun owned the restaurant and operated it pursuant to a franchise agreement between First Sun and Wendy's. Am. Compl. ¶¶ 3, 7, 10; Defs.' Mem. Supp. Mot. Summ. J. [D.E. 45] 2. John Manley purchased and consumed food at the restaurant four or five times during February and March 2007. Manley Dep. 128–29. On these occasions, John Manley usually ordered, purchased, and consumed a single- or double-patty hamburger, garnished with cheese, tomatoes, pickles, onions, bacon, mayonnaise, and ketchup, a side order of french fries or onion rings, and a soft drink. Manley Dep. 144–47; Manley Resp. to Interrog. [D.E. 44–2] ¶¶ 19, 27. John Manley paid for his food with cash on each visit, and did not retain receipts from his purchases. Manley Dep. 140–42.² During February and March 2007, John Manley did not consume food at any other Wendy's restaurant or any other fast food restaurant. Manley Dep. 84, 206; Manley Resp. to Interrog. ¶ 19. However, John Manley conceded that he occasionally ate at other non-fast food restaurants in Wilmington, North Carolina, during the relevant period. See Manley Resp. to Interrog. ¶ 25.

In the months after March 2007, plaintiff John Manley “experienced mild discomfort.” Manley Dep. 90–100. This discomfort evolved into bouts of fatigue, coughing, and choking in mid–2007. Id. 90–94. John Manley first sought medical care for the coughing on September 14, 2007; however, doctors were unable to diagnose his symptoms for approximately two years. Manley Dep. 94–96; Gebrail Dep. [D.E. 44–6] 37–44.³ During this period, John Manley also began to experience gastrointestinal problems. Manley Dep. 100–03. In July 2009, Dr. Momen M. Wahidi, an interventional pulmonologist at Duke University Medical Center performed a bronchoscopy of John Manley's lungs. Manley Dep. 96–97; Wahidi Dep. [D.E. 44–9] 14–17. The procedure revealed that a foreign object of approximately two inches in length was lodged in one of John Manley's lungs. Manley Dep. 94–97; Wahidi Dep. 14–16. In September 2009, Dr. Wahidi surgically removed the object and identified it as a plastic fragment from an eating utensil. Wahidi Dep. 14–15; Manley Dep. 94–97. The fragment was embossed with a portion of the Wendy's logo. Defs.' Mot. Summ. J., Ex. 1 (photograph of the utensil fragment); Manley Dep. 155–56. John Manley's treating physician, Dr. Ayman Gebrail, concluded that the fragment caused the symptoms of which John Manley had first complained in 2007. See Gebrail Dep. 39–40. Dr. Wahidi agreed with Dr. Gebrail's diagnosis. See Wahidi Dep. 35–36.

Plaintiffs contend that John Manley “unknowingly ingested said plastic fragment” while consuming “a Wendy's loaded hamburger sandwich that he had purchased from the Wendy's located at 350 South College Road, Wilmington, North Carolina.” Am. Compl. ¶ 29; see Manley Resp. to Interrog. ¶ 19. They claim that on one of John Manley's February or March 2007 visits to the restaurant, he ordered a sandwich, that restaurant employees prepared the sandwich in the kitchen area of the restaurant, that the sandwich contained the utensil fragment, and that he unknowingly consumed the fragment while eating the sandwich, causing the fragment to become lodged in his lung. Am. Compl. ¶ 24; Manley Resp. to Interrog. ¶ 19. Plaintiffs reach this conclusion through circumstantial reasoning. See Am. Compl. ¶ 24; Manley Resp. to Interrog. ¶ 19. First, John Manley testified that the presence of the Wendy's logo on the fragment indicated that the fragment came from a Wendy's restaurant and entered his lung while he was consuming food purchased from the restaurant. Manley Dep. 154. John Manley then stated that he was certain that he would have noticed the fragment had it been in his drink, which he consumed with a straw. Id. 148. He stated that he would have also noticed the fragment had it been in a french fry or onion ring, which he consumed with his hands. Id. 157. Therefore, John Manley concluded that the fragment must have been in one of the sandwiches that he purchased, which he consumed by hand, taking large bites. Id. 157–61; Manley Resp. to Interrog. ¶ 19.

Plaintiffs allege that the symptoms that John Manley suffered as a result of the plastic fragment being lodged in his lung caused him to incur substantial medical expenses, and he anticipates incurring additional expenses related to future treatment. Am. Compl. ¶ 32. Additionally, John Manley alleges that he has suffered pain and discomfort, preventing him from performing his normal activities and employment obligations. Id. ¶ 33.

Plaintiffs raise three claims, all under North Carolina law. First, John Manley alleges that defendants breached their implied warranty of merchantability associated with the sale of food from defendants to John Manley. Id. ¶¶ 35–44. John Manley claims that the good sold to him by defendants (a sandwich in February or March 2007) was not merchantable at the time of sale because of the undisclosed presence of the plastic fragment. Id. ¶¶ 41–42. Second, John Manley claims that defendants were negligent in preparing and selling food containing the plastic fragment, and that this negligence was the direct and proximate cause of his injuries. Id. ¶¶ 45–46. Third, Karen Manley claims loss of consortium, alleging that before John Manley's injuries, the Manleys enjoyed a happy marriage, and that since his injuries, John Manley has not been able to “function in his full capacity as a marriage partner” to Karen Manley. Id. ¶¶ 48–49. Defendants seek summary judgment as to all of plaintiffs' claims. See Defs.' Mot. Summ. J. 1–2.

II.

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the moving party has met this burden, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis and quotation omitted). A genuine dispute about a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court views the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

A.

Under North Carolina law, a plaintiff may base a products liability action on a breach of a contractual warranty. N.C. Gen.Stat. Ann. § 99B–1.2. North Carolina's version of the Uniform Commercial Code states that “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Id. § 25–2–314. The statute states that “serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.” Id. The statute further states that goods are merchantable when they, inter alia, “are fit for the ordinary purposes for which...