McCarley v. West Quality Food Service

• Decision Date: 14 July 1997
• Citation: 948 S.W.2d 477
• Court: Tennessee Supreme Court
• Parties: Prod.Liab.Rep. (CCH) P 15,014 Marvin McCARLEY and Ellyse McCarley, Plaintiffs/Appellants, v. WEST QUALITY FOOD SERVICE d/b/a Kentucky Fried Chicken, Defendant/Appellee.

Page 477

948 S.W.2d 477

Prod.Liab.Rep. (CCH) P 15,014

Marvin McCARLEY and Ellyse McCarley, Plaintiffs/Appellants, v. WEST QUALITY FOOD SERVICE d/b/a Kentucky Fried Chicken,

Defendant/Appellee.

Supreme Court of Tennessee,

at Jackson.

July 14, 1997.

Clinton V. Butler, Jr., Dale Conder, Jr., Rainey, Kizer, Butler, Reviere & Bell, Jackson, for defendant/appellee.

T. Verner Smith, Jackson, for plaintiffs/appellants.

OPINION

HOLDER, Justice.

The plaintiffs, Marvin and Ellyse McCarley, appeal the summary dismissal of their complaint alleging that Mr. McCarley received food poisoning after ingesting food improperly prepared by the defendant, Kentucky Fried Chicken. The trial court granted the defendant's motion for summary judgment. The Court of Appeals affirmed and held that the plaintiffs' proof was insufficient to establish the element of causation. We granted appeal to address: (1) the Court of Appeals' analysis in summary judgment dispositions; and (2) the quantum and type of proof plaintiffs must proffer to survive summary dismissal in negligent food poisoning cases. Upon review, we reverse and remand for further proceedings consistent with this opinion. ¹

BACKGROUND

The McCarleys filed a complaint against West Quality Food Service, Inc. d/b/a Kentucky Fried Chicken ("KFC"). The complaint alleged that Mr. McCarley had contracted food poisoning after consuming fried chicken purchased at KFC. Mrs. McCarley included a claim for loss of consortium.

KFC filed a motion for summary judgment. In support of summary judgment, KFC alleged that: (1) Mr. McCarley had consumed bacon prior to his consumption of the Kentucky Fried Chicken; (2) Mr. McCarley's food poisoning was consistent with having consumed improperly prepared meat or poultry; and (3) neither the bacon nor the chicken had been tested for the presence of the bacteria precipitating Mr. McCarley's maladies. KFC argued that absent a test of both food sources, Mr. McCarley "cannot carry his burden of proof to prove by a preponderance of the evidence that the chicken caused the food poisoning."

The record consists of the deposition testimony of Mr. McCarley, Mrs. McCarley, and Dr. Mark Young. Dr. Young was Mr. McCarley's treating physician.

Mrs. McCarley purchased a family pack from a KFC restaurant located in Boliver, Tennessee, on August 3. The family pack was served as the McCarley family dinner that evening. Mrs. McCarley stated that she took a leg from the family pack. She, however, felt that the leg "didn't look too hot." She then opted for a wing. As she consumed the wing, she noticed that the chicken "smelled kind of funny" and "didn't taste right."

Mr. McCarley stated that on the morning of August 3, his breakfast consisted of bacon, eggs, and rice. He did not have lunch that day. For dinner, he consumed approximately three pieces of chicken from the KFC family pack. He stated that around six o'clock the following morning he awoke with severe abdominal pains. He also had profuse diarrhea. He attempted to treat his diarrhea with an over-the-counter medication throughout the day on August 4. His symptoms continued and he was subsequently hospitalized on August 5.

Dr. Young's testimony indicated that the appellant presented the following symptoms: abdominal pain, a fever of 103 degrees, chills, generalized aches, and profuse diarrhea. Dr. Young performed blood cultures which tested positive for campylobacter. ² He then stated that Mr. McCarley's symptoms were consistent with having ingested improperly cooked poultry or other meat products contaminated by campylobacter. Dr. Young further stated that chicken was at the top of the list.

The trial court granted KFC's motion for summary judgment. The Court of Appeals affirmed the dismissal and held that the McCarleys could not establish by a preponderance of the evidence that the chicken caused Mr. McCarley's illness. For the reasons stated below, we reverse and remand for proceedings consistent with this opinion.

ANALYSIS

The McCarleys assign error in the trial court's summary dismissal of their complaint. They allege that a genuine issue of material fact existed as to whether the chicken caused Mr. McCarley's food poisoning. They argue that the appellate court's decision creates an insurmountable burden on victims of food poisoning and that victims cannot prevail in food poisoning cases unless they retain: (1) a specimen of the suspect food; and (2) specimens of all other foods consumed within close proximity to the manifestation of symptoms.

Initially, we find that the proper standard and burden shifting analysis applicable to summary judgment dispositions has not been applied. The appellate court acknowledged the moving party's burden of demonstrating the absence of material facts creating genuine issues for trial. The court, however, bypassed the moving parties' initial burden and addressed only the sufficiency of the non-moving parties' opposing evidence. We find that the court erred in focusing on the non-moving parties' burden without first addressing whether that burden was actually triggered.

A party seeking summary judgment must demonstrate the absence of any genuine and material factual issues. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). Mere "conclusory assertion[s] that the non-moving party has no evidence is clearly insufficient." Id. at 215. The movant must either affirmatively negate an essential element of the non-movant's claim or conclusively establish an affirmative defense. Id. 215 n. 5. If the movant does not negate a claimed basis for the suit, the non-movant's burden to produce either supporting affidavits or discovery materials is not triggered and the motion for summary judgment fails. Id.

If, however, the movant does successfully negate a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings. Id. The non-moving party must then establish the existence of the essential elements of the claim. Id. The non-movant's burden may be met by:

(1) pointing to evidence establishing material factual disputes that were over-looked or ignored by the moving party;

(2) rehabilitating the evidence attacked by the moving party;

(3) producing additional evidence establishing the existence of a genuine issue for trial; or

(4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.

Id. at 215 n. 6. The non-moving party's evidence shall be taken as true. Id. Moreover, summary judgment shall be denied if "any doubt whether or not a genuine issue exists." Id. at 211.

The elements of a cause of action based on negligence are duty, breach of duty, cause in fact, loss or injury, and proximate cause. Haynes v. Hamilton, 883 S.W.2d 606, 611 (Tenn.1994). The disputed issues in the present case are: (1) whether plaintiffs have established that KFC breached its duty to serve uncontaminated chicken; and (2) whether the chicken, if contaminated, was the proximate cause of plaintiffs' alleged injuries. ³

KFC's motion for summary judgment alleged that the McCarleys could not establish the element of causation. KFC's motion was supported by the following assertions:

(1) that Mr. McCarley had also ingested bacon earlier that day;

(2) that either the bacon or the chicken could have caused Mr. McCarley's illness; and

(3) that...