Foster v. AFC Enterprises, Inc.

896 So. 2d 293, 2005 WL 474831
CourtLouisiana Court of Appeal
DecidedMarch 2, 2005
DocketNo. 04-1014
StatusPublished
Cited by4 cases

This text of 896 So. 2d 293 (Foster v. AFC Enterprises, Inc.) 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
Foster v. AFC Enterprises, Inc., 896 So. 2d 293, 2005 WL 474831 (La. Ct. App. 2005).

Opinions

^EZELL, Judge.

A restaurant patron brought suit, alleging that he suffered from food poisoning after consuming a chicken meal from the Defendant restaurant. Following a bench trial, the trial court found in favor of the Plaintiff. The Defendants now appeal. For the following reasons, we affirm.

FACTS

The record of the proceedings below indicates that on June 3, 2002, the Plaintiff John Foster, Jr., awoke and ate his standard breakfast of grits, bacon and eggs before leaving for his job in the maintenance department of the Vernon Parish School Board. He testified that, between [295]*29511:00 and 11:30 a.m., he and a co-worker went to Church’s Fried Chicken for lunch, where he ordered three pieces of chicken, french fries, and a cold drink. Mr. Foster further testified that he returned to work to eat his meal, finished his workday, and returned home in the afternoon. According to Mr. Foster, he did not eat anything else after lunch because he began vomiting and having stomach pains at approximately 7:00 p.m. that evening. His stomach pains and vomiting persisted until his wife took him to a hospital emergency room during the early morning hours of June 4.

Mr. Foster was admitted into the emergency room at Byrd Regional Hospital complaining of abdominal pain, nausea, and vomiting. Mr. Foster testified that he was first seen by Dr. Victor Hernandez in the emergency room, who, upon hearing of Mr. Foster’s lunch told him, “you have been food poisoned.... ” While there is no testimony from Dr. Hernandez, emergency room records indicate that Dr. Hernandez was the initial treating physician. Chest and stomach x-rays were normal. Dr. Hernandez wanted to rule out cholecystitis and biliary colic, gallbladder problems, so he ordered a hepoatobilliary scan. While in the emergency room, Mr. | ^Foster vomited a green liquid with food particles. Despite treatment in the emergency room, doctors were unable to control Mr. Foster’s vomiting and he was admitted to the hospital.

According to the record, Mr. Foster’s doctor, Dr. Hanna Lubbos, also met with him during the morning of June 4. Dr. Lubbos had been treating Mr. Foster for diabetes mellitus type 2 since 1999, which had been controlled fairly recently. In his assessment Dr. Lubbos diagnosed Mr. Foster with “[gastroenteritis that is most likely secondary to food poisoning with vomiting that is responding to conventional therapy.” At his deposition, Dr. Lubbos stated that neither a sample of Mr. Foster’s stool nor his vomitus was taken and inspected during his hospital stay.

Dr. Guru Ghanta also examined Mr. Foster on a referral from Dr. Lubbos. Dr. Ghanta noted that Mr. Foster had “[n]o history of indigestion, heartburn or any alteration of bowel habits.” His impression was “[possible acute gastritis; rule out acute peptic ulcer disease.” His report does not mention food poisoning.

Mr. Foster testified that later in the morning of June 4, he felt “a little better — a whole lot better than I was when I first went there.... ” Dr. Lubbos discharged him with a final diagnosis of gastroenteritis with food poisoning. Mr. Foster testified that after returning home he continued to have stomach pains and feel nauseated and could not return to work for approximately three or four days.

Mr. Foster filed suit alleging that he “was advised that he was diagnosed with food poisoning” and “that the sole cause of his condition was the faulty preparation of the food prepared by the employees of defendant.” Following a bench trial, the trial court found in favor of Mr. Foster, awarding him $2,500.00 in general damages and $1,143.65 in special damages. The trial court then granted Mr. Foster’s motion |3for new trial, which alleged that the court had failed to award medical payments made by his insurer as required by the collateral source rule. The court changed the damage awards to $2,500.00 for general damages and $6,353.60 for special damages, which represented the total amount of medical charges Mr. Foster incurred in relation to the incident.

The Defendants took a suspensive appeal from this decision. They alleged that the trial court erred in finding Mr. Foster suffered from food poisoning sold by Church’s.

[296]*296DISCUSSION

To meet his or her burden of proof in a food poisoning case, the plaintiff must prove that the deleterious condition existed in the product when it was purchased. Hairston v. Burger King Corp., 33,587 (La.App. 2 Cm. 6/21/00), 764 So.2d 176. The plaintiff must further prove the existence of a causal relationship between the illness or injury and the consumption of the food. Id. In fulfilling this burden of proof, “it is not necessary for the consumer to negate every conceivable cause but he must show that it is more likely than not that the food’s condition caused the injury of which he complains.” Griffin v. Schwegmann Brothers Giant Supermarkets, Inc., 542 So.2d 710, 712 (La.App. 4 Cir.1989).

“The courts have never compelled a plaintiff to produce an actual analysis of the food consumed in order to establish its unwholesome condition. Rather, the courts have been willing to infer the deleterious nature of the food consumed from the circumstances surrounding the illness. In all of the cases in which there has been successful recovery, the plaintiff has shown that the food was consumed by him, and that no other food which might reasonably be assumed to have caused the illness had been consumed within a number of hours before or after the consumption of the suspect product. The plaintiff has also had medical opinion to the effect that it was probable that his illness was caused by the consumption of the particular product involved. In addition, the successful plaintiffs in the above cases have been able to show some |4other independent circumstance, which tends to prove his case.... ”

Lee v. Church’s Fried Chicken, 396 So.2d 374, 375 (La.App. 3 Cvc.1981)(quoting McCauley v. Manda Bros. Provisions Co., 202 So.2d 492, 495 (La.App. 1 Cir.), writ granted, 251 La. 402, 204 So.2d 578 (1967), affirmed, 252 La. 528, 211 So.2d 637 (1968)). Furthermore, Mr. Foster does not have to establish that other people became ill from eating the chicken. McAvin v. Morrison Cafeteria Co. of Louisiana, 85 So.2d 63 (La.Orls.App.1956).

Mr. Foster explained that the only other food he ate that day was his usual breakfast items. It was after he consumed the chicken that he fell violently ill. While we recognize that the hepoatobilliary scan indicated evidence of chronic cholecystitis, his own treating physician, Dr. Lubbos, testified that Mr. Foster had never had any stomach problems before. Both Mr. Foster and his wife testified that he had never had stomach problems before. Dr. Lubbos explained that his diagnosis of food poisoning was based on the symptoms of abdominal pain, nausea, and vomiting and the history provided by Mr. Foster.

In the instant case, the trial court ruled in favor of the Plaintiff, stating in its written reasons for judgment that “[c]on-sidering the testimony of the parties and Dr. Lubbos’ diagnosis at the time he first examined plaintiff, the Court finds that it is more probable than not that plaintiffs condition was the result of food poisoning.” In considering a case in which the plaintiff alleges that the consumption of deleterious food caused illness, a court of appeal may not upset a trial court’s findings of fact absent manifest error. Hairston, 764 So.2d 176.

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