Chambers-Johnson v. Applebee's Restaurant

101 So. 3d 473, 12 La.App. 5 Cir. 98, 2012 WL 3968913, 2012 La. App. LEXIS 1130
CourtLouisiana Court of Appeal
DecidedSeptember 11, 2012
DocketNo. 12-CA-98
StatusPublished
Cited by10 cases

This text of 101 So. 3d 473 (Chambers-Johnson v. Applebee's Restaurant) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambers-Johnson v. Applebee's Restaurant, 101 So. 3d 473, 12 La.App. 5 Cir. 98, 2012 WL 3968913, 2012 La. App. LEXIS 1130 (La. Ct. App. 2012).

Opinion

MARC E. JOHNSON, Judge.

12Plaintiff, May Deal Chambers-Johnson (“Ms. Johnson”), appeals the granting of a [474]*474motion for summary judgment in favor of defendant, Applebee’s International, Inc. (“Applebee’s Inc.”). For the reasons that follow, we affirm.

Ms. Johnson filed suit in June 2005 seeking damages for physical and psychological injuries she sustained after purchasing a salad that allegedly contained the tip of a human finger from an Apple-bee’s restaurant on Clearview Parkway. She asserted defendants, Applebee’s Inc., as the franchisor owner/operator of the Applebee’s restaurant;1 Southern River Restaurants, LLC, as the franchisee owner/operator of the restaurant; and Jeremy Walcott and Raymond Mundy, as the managers of the restaurant, were liable for failing to provide sanitary food products, failing to provide safeguards against contaminated food, failing to properly train, supervise and monitor employees, and various other acts of negligence.

|sIn August 2011, Applebee’s Inc. filed a motion for summary judgment claiming Ms. Johnson would be unable to prove it was liable for the incident because it had no employees present at the restaurant on the date of the incident, and it did not train, monitor, supervise or otherwise direct the employees at the restaurant at any time. Applebee’s Inc. asserted the restaurant was owned and operated at all times by franchisee, Southern River Restaurants, LLC (“SRR”). Applebee’s Inc. contended there was no association between Applebee’s Inc. and the restaurant that created any duty on its behalf to protect Ms. Johnson against the injuries allegedly sustained. To support its position that it did not have an obligation or duty to perform any of the acts alleged by plaintiff in her petition, Applebee’s Inc. submitted the affidavit of Thomas Havrilla, the Area Director for SRR, who supervises six different restaurants including the Ap-plebee’s restaurant at issue.

In his affidavit, Mr. Havrilla stated that the Applebee’s restaurant at issue was owned by SRR, and that Applebee’s Inc. did not own or operate the restaurant on the date of the incident. He explained that all the restaurant workers were employed by SRR, and that SRR had the sole responsibility to train, supervise and monitor its own employees. Mr. Havrilla specifically stated that Applebee’s Inc. did not employ any of the personnel working for the restaurant and did not train, supervise or monitor the employees at the restaurant. He further stated Applebee’s Inc. did not provide food products to the restaurant and did not maintain the restaurant. Mr. Havrilla expressly stated that it was SRR’s responsibility to provide safeguards against contaminated food.

In addition to Mr. Havrilla’s affidavit, Applebee’s Inc. attached a portion of plaintiffs deposition to its motion for summary judgment to show Ms. Johnson had no evidence or basis to support her claims against Applebee’s Inc. Applebee’s |4Inc. pointed to various portions of Ms. Johnson’s deposition where she was specifically asked how Applebee’s Inc.’s acts of omission were negligent. Ms. Johnson was unable to offer any information other than general claims that Applebee’s Inc. did not properly train or supervise the restaurant’s employees.

Ms. Johnson filed an opposition to the motion for summary judgment challenging the timeliness of the motion and claiming there were genuine issues of material fact that precluded summary judgment. Specifically, Ms. Johnson argued there were factual issues relating to whether SRR and its employees were acting based upon in-[475]*475struetions and standards given to them by Applebee’s Inc. and whether those instructions and standards were deficient.

In support of her opposition, Ms. Johnson attached a partial copy of the franchise agreement (“the Agreement”) between Ap-plebee’s Inc. and SRR and a portion of the deposition of Jeremy Walcott, one of the restaurant managers at the time of the incident. Ms. Johnson argued that the Agreement established that Applebee’s Inc., as the franchisor, dictated the standards by which SRR, the franchisee, had to operate the restaurant. Ms. Johnson maintained that these directives included the procedures for preparing food so as to promote uniformity of the food among all restaurants. She further contended the Agreement showed Applebee’s Inc. was responsible for training the general manager, kitchen manager and assistant manager of the restaurant regarding the standards, methods and techniques relevant to the performance of their duties as set forth by Applebee’s Inc. Ms. Johnson argued Applebee’s Inc.’s deficient standards contributed to the food contamination at issue.

Ms. Johnson further relied on Mr. Wal-cott’s deposition to show the procedures mandated for the Expeditor, the person responsible for the final presentation and garnishing of the food, were deficient. Specifically, Ms. Johnson |srelied on Mr. Walcott’s statement that the Expeditor is not required to lift up the chicken in a salad to make sure there is nothing foreign under it as evidence that Applebee’s Inc.’s standards were deficient.

After a hearing on August 15, 2011, the trial court granted Applebee’s Inc.’s motion for summary judgment and dismissed Ms. Johnson’s claims against Applebee’s Inc. It is this judgment from which Ms. Johnson appeals.2

On appeal, Ms. Johnson asserts there are genuine issues of material fact relating to the extent Applebee’s Inc. caused and/or contributed to the accident that preclude summary judgment. She contends there is sufficient evidence to show Applebee’s Inc. created and enforced safety standards and procedures, that those standards were defective, and that the defective standards caused and/or contributed to the accident. Ms. Johnson further contends the motion for summary judgment was untimely and, as such, the trial court erred in considering it.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of [476]*476factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will |fibe able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-389 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lapuyade v. Rawbar, Inc.
263 So. 3d 508 (Louisiana Court of Appeal, 2018)
Moonan v. Louisiana Medical Mutual Insurance Co.
209 So. 3d 360 (Louisiana Court of Appeal, 2016)
Legarreta v. Wendy's International, Inc.
201 So. 3d 1003 (Louisiana Court of Appeal, 2016)
Guidry v. Savoie
194 So. 3d 1184 (Louisiana Court of Appeal, 2016)
Nearhood v. Anytime Fitness
191 So. 3d 707 (Louisiana Court of Appeal, 2016)
Thomas Nearhood v. Anytime Fitness
Louisiana Court of Appeal, 2016
First Bank & Trust v. Treme
129 So. 3d 605 (Louisiana Court of Appeal, 2013)
Parish of Jefferson v. Daughters of St. Paul Inc.
113 So. 3d 371 (Louisiana Court of Appeal, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
101 So. 3d 473, 12 La.App. 5 Cir. 98, 2012 WL 3968913, 2012 La. App. LEXIS 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-johnson-v-applebees-restaurant-lactapp-2012.