Landry v. Joey's, Inc.

261 So. 3d 112
CourtLouisiana Court of Appeal
DecidedDecember 12, 2018
Docket18-441
StatusPublished

This text of 261 So. 3d 112 (Landry v. Joey's, 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
Landry v. Joey's, Inc., 261 So. 3d 112 (La. Ct. App. 2018).

Opinion

THIBODEAUX, Chief Judge.

Plaintiff Terese Landry appeals the trial court's grant of summary judgment in favor of Defendant Joey's Inc. d/b/a Joey's Specialty Food. Plaintiff filed suit alleging that her consumption of a fried shrimp po-boy sandwich from Defendant's food store caused her to become ill with food poisoning. Defendant moved for summary judgment thereafter, contending that Plaintiff could not prove by a preponderance of the evidence that the food she allegedly consumed was deleterious, nor that its consumption was the direct cause of her illness. The trial court granted Defendant's Motion for Summary Judgment, finding that a reasonable juror could not conclude from the facts adduced that Plaintiff could sufficiently carry her burden of proof at trial. Because we find that Plaintiff has not presented evidence sufficient to create a *114genuine issue of material fact, we affirm the trial court's judgment dismissing Plaintiff's claims with prejudice.

I.

ISSUE

We must determine whether the trial court erred in granting Defendant's motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

On October 7, 2015, at approximately noon, Plaintiff Terese Landry ordered a fried shrimp po-boy sandwich from Joey's, a lunchtime food store owned and operated by Defendant Joey's Inc. d/b/a Joey's Specialty Food ("Joey's") in Lafayette, Louisiana. Because the food store was full of patrons at the time, Ms. Landry decided to eat the sandwich while sitting alone in her parked car. She testified that the sandwich she received, however, had no fried shrimp in it, but instead contained a mayonnaise-like mixture and a green, leafy vegetable. In addition to finding that her order was incorrect, Ms. Landry noted that her sandwich "just didn't taste right." In spite of these facts, Ms. Landry never sought to correct her order, and further proceeded to eat the entire sandwich.

At approximately 4:00 a.m. the following morning, an ambulance was called after Ms. Landry reported becoming extremely ill with severe nausea, vomiting, and diarrhea. Upon presentation to the emergency room, Ms. Landry stated to Dr. Edward Lyons that she had eaten a po-boy sandwich the day before, and that her symptoms began approximately six hours prior to calling the ambulance. She also stated she believed that her sandwich was cross-contaminated with fish and that she was suffering from a fish allergy, despite never having been medically diagnosed with any food allergies. Dr. Lyons diagnosed Ms. Landry with diverticulitis, pancreatitis, and enteritis. After a stool culture taken came back positive for the Campylobacter bacterium, Dr. Lyons related the enteritis to the presence of Campylobacter. Following her diagnosis, Ms. Landry was hospitalized for seven days.

In his deposition, Dr. Lyons stated that he believed that the Campylobacter was the "inciting agent" of Ms. Landry's illness. However, he also testified that he was not aware of that particular bacterium being transmitted from fish or seafood, though it is commonly found in poultry, swine, and sometimes cattle. He further testified that there was no way to test or determine what Ms. Landry had eaten the day before. Ultimately, Dr. Lyons was unable to determine the specific origin of the Campylobacter bacterium contracted by Ms. Landry, and thus could not state that her illness was more likely than not caused by her consumption of the Joey's po-boy sandwich.

Ms. Landry filed suit against Joey's, alleging that the shrimp po-boy sandwich she consumed was in a deleterious condition at the time it was purchased, and that her consumption of the sandwich caused her to become ill with food poisoning. Following its Answer, Joey's filed a Motion for Summary Judgment before the trial court, asserting that Ms. Landry failed to satisfy her burden of proving by a preponderance of the evidence either of the above elements. Joey's also produced the sworn affidavit of Joey Beyt, the food store's owner, attesting that he was first put on notice of the alleged food poisoning upon receiving Ms. Landry's Petition, that he had not been found in violation of any health code or standard, and that no other patron alleged to have contracted food poisoning from his location. After finding that *115she failed to present any evidence refuting the sole medical opinion on causation, the trial court granted the motion and dismissed Ms. Landry's claims with prejudice.

On appeal, Ms. Landry seeks a reversal of the trial court's granting of summary judgment by arguing that she "can adequately prove more probable than not that Appellee's po-boy was the cause of her severe food poisoning." She argues that genuine issues of material fact remain as to whether: (1) the shrimp po-boy she consumed from Joey's was deleterious, which was the cause of her illness; (2) the Campylobacter bacterium came from the shrimp po-boy; and (3) there were other similar food poisoning cases at the hospital at the time of her admission.

III.

STANDARD OF REVIEW

An appellate court reviews the grant of a motion for summary judgment de novo, "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Serv. & Specialty Co., Inc. v. Sonny Greer , 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. We shall consider the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-moving party. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764.

If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence pointing out the absence of factual support for one or more essential elements to the non-moving party's case. La.Code Civ.P. art. 966(D)(1). Once the mover properly supports his motion for summary judgment, the burden is on the non-moving party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. However, the failure of the non-moving party to set forth evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc. , 00-78 (La. 6/30/00), 764 So.2d 37.

Where the threshold question in reviewing a trial court's grant of summary judgment is whether a genuine issue of material fact remains, such a determination must be viewed in light of the relevant substantive law. Romero v. Allstate Ins. Co. , 08-256 (La.App. 3 Cir. 5/13/09), 11 So.3d 579, writ denied

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

Related

Griffin v. Schwegmann Bros. Giant Supermarkets, Inc.
542 So. 2d 710 (Louisiana Court of Appeal, 1989)
Babin v. Winn-Dixie Louisiana, Inc.
764 So. 2d 37 (Supreme Court of Louisiana, 2000)
Hines v. Garrett
876 So. 2d 764 (Supreme Court of Louisiana, 2004)
McCauley v. Manda Brothers Provisions Co.
202 So. 2d 492 (Louisiana Court of Appeal, 1967)
Supreme Services v. Sonny Greer, Inc.
958 So. 2d 634 (Supreme Court of Louisiana, 2007)
McCauley v. Manda Brothers Provisions Company
211 So. 2d 637 (Supreme Court of Louisiana, 1968)
Romero v. Allstate Insurance Co.
11 So. 3d 579 (Louisiana Court of Appeal, 2009)
McCauley v. Manda Bros. Provisions
204 So. 2d 578 (Supreme Court of Louisiana, 1967)
Burnett v. Essex Insurance Co.
773 So. 2d 786 (Louisiana Court of Appeal, 2000)
Foster v. AFC Enterprises, Inc.
896 So. 2d 293 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
261 So. 3d 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-joeys-inc-lactapp-2018.