Wilson v. Circus Circus Hotels, Inc.

• Decision Date: 12 December 1985
• Docket Number: No. 16211,16211
• Citation: 101 Nev. 751,710 P.2d 77
• Parties: Gelena Ford WILSON, individually and as natural mother and guardian ad litem of Bradford D. Wilson, a minor Appellant, v. CIRCUS CIRCUS HOTELS, INC., dba Circus Circus Hotel & Casino, Respondent.
• Court: Nevada Supreme Court

Page 77

710 P.2d 77

101 Nev. 751

Gelena Ford WILSON, individually and as natural mother and guardian ad litem of Bradford D. Wilson, a minor Appellant, v. CIRCUS CIRCUS HOTELS, INC., dba Circus Circus Hotel &amp Casino, Respondent.

No. 16211.

Supreme Court of Nevada.

Dec. 12, 1985.

[101 Nev. 752] Crockett & Myers and Jonathan C. Reed, Las Vegas, for appellant.

Edwards, Hunt & Hale and Amy R. Wrobel, Las Vegas, for respondent.

OPINION

PER CURIAM:

This is an appeal from a directed verdict for the respondent/defendant (Circus Circus) in a food poisoning case. The sole issue on appeal is whether the plaintiff presented sufficient evidence on the element of causation to send the case to the jury. Because the appellant/plaintiff presented evidence tending to negate other possible causes of the victim's illness we reverse and remand for a new trial.

On October 17, 1980 two and one-half year old Bradford Wilson (Brad) left Texas with his family to visit Brad's great uncle in California. The Wilsons stopped in Las Vegas, Nevada for a few days before continuing the trip to California. At approximately 11:00 a.m. on October 18, 1980 the Wilsons checked into the Circus Circus Hotel and ate at Circus Circus's Pink Pony Restaurant.

Although Brad began to show his first signs of illness around 3:00 p.m. on October 20, 1980, his parents did not become concerned until he developed a fever and diarrhea in the early morning hours of October 21, 1980. Brad's mother called a doctor who told her Brad's symptoms were probably caused by a virus and that she should not worry. The Wilsons checked out of Circus Circus later that morning and decided to visit Caesars Palace before driving on to California. While at Caesars Palace, Brad complained of stomach pain. His father noticed that Brad's fever was worse and his stools were black. Brad was taken to the emergency room at Sunrise Hospital and diagnosed as suffering from hemorrhagic gastroenteritis caused by salmonella bacteria. Brad was hospitalized for eight days.

Brad's mother testified that Brad had eaten exclusively at Circus Circus's restaurants since the 11:00 a.m. brunch at the Pink Pony on October 17, 1980. Brad usually ate the child's fish dish with tartar sauce. No one else in the family ate the fish with tartar sauce during their stay at Circus Circus. The tartar sauce was served in individual one-ounce cups. The plaintiff argued at trial that Brad had contracted the salmonella bacteria from one of the cups of tartar sauce left unrefrigerated for too long.

Dr. Anes, plaintiff's medical expert, testified that there was an 80% chance that Brad was poisoned by food served by Circus Circus if Brad had eaten only at Circus Circus during the 52 hours before the onset of symptoms. Dr. Anes increased his estimate to 90% assuming that Brad had eaten only chips and cookies after 9:00 p.m. on October 17, 1980. Medical experts testified that the first symptoms of salmonella poisoning appear 6 to 72 hours after ingestion of contaminated food or water. Most people become ill within 36 hours of ingestion.

After both parties had presented their evidence, Circus Circus moved for a directed verdict pursuant to Nevada Rule of Civil Procedure 50(a). The district court granted the motion, concluding that the plaintiff had failed to prove as a matter of law that Circus Circus's food had proximately caused Brad's illness.

Plaintiff contends that the evidence of Brad's illness following ingestion of Circus Circus's food, coupled with evidence tending to negate other possible causes, constituted sufficient proof to send the case to the jury. Circus Circus, on the other hand, argues that the evidence was insufficient as a matter of law because it failed to eliminate other possible sources of the salmonella bacteria and because there was no proof that the food was outwardly deleterious. Because any decision rendered by the jury would have been based on speculation and conjecture, Circus Circus asserts, the district court properly removed the case from the jury.

As a general rule mere correlation between ingestion and illness is insufficient as a matter of law to establish causation. See, e.g., Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003, 136 Cal.Rptr. 915, 918 (Cal.Ct.App.1977); ...