Simeon v. Doe
| Decision Date | 24 May 1993 |
| Docket Number | No. 92-C-2353,92-C-2353 |
| Citation | 618 So.2d 848 |
| Parties | , Prod.Liab.Rep.(CCH)P 13,530 Theresa M. SIMEON, et al. v. John DOE, d/b/a The Sweet Pepper Grill, et al. |
| Court | Louisiana Supreme Court |
Thomas P. Breslin, Jr., Chehardy, Sherman, Ellis & Breslin, Charles S. LaBarre, Wendell H. Gauthier, Gauthier & Murphy, Metairie, for applicant.
Gustave A. Fritchie, III, Montgomery, Barnett, Brown, Reed & Hammond, H.F. Foster, III, Bienvenu, Foster, Ryan & O'Bannon, Craig R. Nelson, Christina Papastavros, Sarah Ann Lowman, Hulse, Nelson & Wanek, New Orleans, for respondent.
Lawrence S. Kullman, New Orleans, Daniel C. Palmintier, Lafayette, Michael C. Palmintier, Baton Rouge, for Louisiana Trial Lawyers Ass'n, amicus curiae.
*
On September 6, 1986, Floyd Simeon, Sr., age 63, and his son, Edward Simeon, age 38, went to the Sweet Pepper Grill, a restaurant at the River Walk shopping center in New Orleans. They ordered a dozen and a half raw oysters. The oysters were taken from a refrigerated area, shucked in front of them, and were placed on a single tray. Mr. Simeon ate approximately six oysters; his son ate nine or ten. His son testified the oysters smelled and looked "okay" and tasted "good." He testified he and his father had eaten raw oysters together for many years, and his father had never gotten sick from eating them.
Two days later, Mr. Simeon began running a fever and complained of pain in his ankle. The next day, his wife brought him to the hospital. His family doctor, Dr. Charles Magee, called in Dr. James D. Conway, a specialist in infectious diseases. Dr. Conway diagnosed Mr. Simeon as suffering from vibrio vulnificus septicemia, an infection resulting from ingestion of raw oysters containing the vibrio vulnificus bacteria. As the disease progressed, Mr. Simeon developed severe blisters on his legs and began to lose subcutaneous tissue. Dr. John Church, a plastic surgeon, was called in. Dr. Church applied antibiotic dressings and began debridement of the skin in an effort to stop the spread of the infection. When this was unsuccessful, he was forced to amputate both of Mr. Simeon's legs. However, the doctors were unable to stop the spread of the infection and Mr. Simeon died on September 23, 1986.
On March 23, 1987, plaintiffs filed a petition for damages for the wrongful death of Mr. Simeon. Named as defendants were John Doe, d/b/a The Sweet Pepper Grill (Sweet Pepper) 1 and United States Fidelity and Guaranty Co. (USF & G), as insurer of Sweet Pepper. On September 15, 1987, plaintiffs filed a second supplemental and amended petition naming as an additional defendant M.J. Bilich Oyster Co. (Bilich), the supplier of oysters to Sweet Pepper. On November 17, 1987, plaintiffs filed a third supplemental and amended petition naming as defendant the Louisiana Department of Health and Human Resources (DHHR).
Evidence at trial indicated that vibrio vulnificus bacteria is not a pollutant and occurs naturally in the Gulf of Mexico. The oyster, because it feeds by filtering hundreds of gallons of seawater per day, concentrates the bacteria inside of itself. Studies suggested that under the appropriate conditions 55-60% of all oysters may contain the vibrio vulnificus bacteria in different doses. Proper cooking will kill the bacteria. Vibrio vulnificus bacteria is microscopic and in order to test for it, the oyster must be destroyed. Currently, there is no feasible way to prevent oysters containing vibrio vulnificus bacteria from reaching the consuming public.
The evidence indicated that vibrio vulnificus bacteria is not toxic to all people and can be killed by stomach acids or by the liver or kidneys. Those persons with gastric disorders, liver diseases (such as cirrhosis or hepatitis) and hemochromatosis (high iron content in the blood) are at risk; diabetics, people with suppressed immune systems (such as people on cancer chemotherapy), and people with renal disorders may possibly be at risk. Statistics indicated that between 1977-1982, the incidence of vibrio vulnificus infection in southern Louisiana was .6 to 1.9 cases per 100,000 population. Between 1977-1985, there were fourteen cases of primary septicemia related to the eating of raw oysters; 2 of those fourteen people, ten died. Once the bacteria gets into a person's bloodstream and septicemia develops, the mortality rate is 50-70%. In August 1982, the DHHR issued to physicians and hospitals a "Monthly Morbidity Report" dealing with vibrio vulnificus infections. The report stated, "[b]ecause of the severity and high case fatality rate for the septicemia cases, physicians should warn patients with chronic underlying liver and kidney diseases and other conditions causing, or capable of causing, impaired immune responses, to avoid eating raw oysters."
Dr. Magee, Mr. Simeon's family doctor since 1970, testified that he diagnosed Mr. Simeon as having cirrhosis of the liver in 1983 and also operated on him that year for a malignancy in his lower colon. He also treated him in July 1986 for a duodenum ulcer. After he found the liver cirrhosis, he advised Mr. Simeon not to consume alcoholic beverages and to watch the amount of sodium he consumed, but did not remember telling him not to eat raw shellfish. He testified that his office received the monthly morbidity reports from DHHR, but could not recall seeing the August 1982 report.
At the conclusion of the plaintiffs' case, the trial judge granted a motion for involuntary dismissal in favor of Sweet Pepper and Bilich finding neither party strictly liable. The judge denied DHHR's motion for involuntary dismissal based on La.R.S. 9:2798.1 (). At the conclusion of the trial, the judge rendered judgment in favor of plaintiffs and against DHHR, finding DHHR had a non-discretionary duty to warn the general public of the dangers of eating raw oysters. Plaintiffs appealed that portion of the judgment which held neither Sweet Pepper nor Bilich liable. DHHR appealed that portion of the judgment holding it liable. A five judge panel of the court of appeal affirmed the portion of the judgment finding no liability on the part of Sweet Pepper and Bilich and reversed that portion of the judgment holding DHHR liable. 3 We granted certiorari to review the correctness of that decision. 4
The issue before us is whether Sweet Pepper, Bilich and/or DHHR are liable to plaintiffs.
Plaintiffs argue that the principles of strict liability should apply to Sweet Pepper and Bilich for the sale of the oysters containing the vibrio vulnificus bacteria.
The principle of legal fault or strict liability underlies articles 2317-22 of the civil code. 5 When harm results from the conduct of a person or defect of a thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former's part is proved. The injured person must prove the vice (i.e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and the damage resulted from this vice. Once this is proved the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 116 (La.1986); Loescher v. Parr, 324 So.2d 441 (La.1975).
The concept of unreasonable risk of harm is analogous to the concept of "unreasonably dangerous" developed in products liability. "Unreasonably dangerous" has been defined as meaning "the article which injured the plaintiff was dangerous to an extent beyond that which would be contemplated by an ordinary consumer." DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26, 30 (La.1981). DeBattista points out that the "unreasonably dangerous" requirement came into our jurisprudence as a result of section 402A of the Restatement (Second) of Torts, which itself developed from common law statutes applying to persons supplying food and drink. Comment i of that section makes it clear that a product is not unreasonably dangerous simply because it cannot be made "entirely safe for all consumption." Examples given in the comment show that while ordinary sugar is a "deadly poison" for diabetics and whiskey is "especially dangerous" to alcoholics, neither product is considered unreasonably dangerous.
Based on the record, we are unable to say that raw oysters containing the vibrio vulnificus bacteria are unreasonably dangerous to the ordinary consumer. The evidence is uncontroverted that vibrio vulnificus bacteria in raw oysters poses little, if any, threat to a healthy person. The bacteria is only harmful to those persons with specific underlying disorders such as liver or kidney disease. Seen is this light, the "defect" is really found in the person rather than the product, much in the same way that sugar is harmful only when used by someone with diabetes. Therefore, we find no error in the trial judge's conclusion that Sweet Pepper and Bilich are not strictly liable. 6
However, a finding that Sweet Pepper and Bilich are not strictly liable does not necessarily mean they are entitled to be dismissed from the suit. As we stated in Halphen, 484 So.2d at 117:
An injured person cannot recover under the codal theory of strict liability if he fails to prove there was an unreasonable risk of injury inherent in the thing which caused his damage. Failing in his attempt to prove a vice in the thing, the injured person cannot rely on strict liability but must pursue a theory of recovery instead which requires him to impugn the conduct of the defendant. Analogy to the product...
To continue reading
Request your trial
-
Batton v. Georgia Gulf, Civil Action Nos. 02-353-D-M3, 02-354-D-M3, 02-379-D-M3, 02-565-D-M3, 02-943-D-M3 (M.D. La. 3/27/2003)
...had a duty, once it had sufficient information, to issue some type of warning." Winstead, at 1244 (La. App. 1 Cir. 1989). Simeon v. Doe, 618 So.2d 848 (La. 1993), is another vibrio vulnificus oyster death case. The event in that case, like Winstead, occurred prior to promulgation by LDHH of......
-
Green v. Smith & Nephew AHP, Inc.
...allergic reaction to shampoo was one of only three reported instances of such a reaction out of 225,000,000 products sold); Simeon v. Doe, 618 So. 2d 848 (La. 1993) (holding that the plaintiff could not recover for a reaction to bacteria in raw oysters where the reaction occurred in only .6......
-
N. Atl. Sec. Co. v. Blache
...citing Johnson, 975 So.2d at 709-10. 167. Fetty, 2020 WL 520026 at *13, citing Johnson, 975 So.2d at 710 (quoting Simeon v. Doe, 92-2353 (La. 5/24/93), 618 So.2d 848, 852-53). 168. Fetty, 2020 WL 520026 at *13, citing Lambert v. Riverboat Gaming Enf't Div., 96-1856 (La. App. 1 Cir. 12/29/97......
-
Batton v. Georgia Gulf
...had a duty, once it had sufficient information, to issue some type of warning." Winstead, at 1244 (La.App. 1 Cir.1989). Simeon v. Doe, 618 So.2d 848 (La.1993), is another vibrio vulnificus oyster death case. The event in that case, like Winstead, occurred prior to promulgation by LDHH of la......
-
Fast food or fat food: food manufacturer liability for obesity: before the courts and juries extend liability beyond reasonable limits, proactive legislation can balance rights of claimants and the food industry.
...Defects, 53 S.C.L. REV. 851, 886. See also Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218, 223 (Ala. 1991); Simeon v. Doe, 618 So.2d 848, 851 (La. (13.) W. PAGE KETTON, DAN B. DOBBS, ROBERT E. KETTON & DAVID G. OWEN, PROSSER & KETTON ON THE LAW OF TORTS [section] 34 (5th ed......