Monday, January 27, 2014

Super Bowl Sunday and Social Host Responsibilities: Keeping the Party “In Bounds” and Safe

If history is any indicator, this coming Sunday – like every Super Bowl Sunday before it – will
Post by Chair Christian Stegmaier
be a big event in the United States.  It’s been estimated only Thanksgiving is a bigger day during the year for food and beverage consumption for Americans.  According to a survey by the Retail Advertising and Marketing Association conducted in 2011, almost 35 million people planned to host a Super Bowl party that year, and 62 million others planned to attend one.  We can only imagine those numbers will be larger in 2014. 
As is true for other get-togethers, alcohol often plays a role in Super Bowl Sunday festivities.  Accordingly, good hosts should take steps to keep their guests “in bounds” when it comes to alcohol consumption.  The consequences relating to impaired driving can be catastrophic. The most recent figures by the National Highway Traffic Administration reveal that on Super Bowl Sunday, 48% of the fatalities occurred in crashes in which a driver or motorcycle rider had a blood alcohol concentration (BAC) level of .08 or higher.   
Social host liability varies from state to state.  While many states have held there is no liability to the host for injuries sustained by an adult guest who was overserved, that’s not always the rule.  Moreover, if the guest is under 21, most courts agree liability exists for the host – the reason being that public policy dictates that underaged persons should not be served alcohol, no matter the circumstances.  And, when it comes to injuries to third parties (i.e., persons injured by an intoxicated guest), a good portion of states have laws that allow a host to be held liable for any injury or death to those injured or killed by intoxicated guests. 
Play it safe.  If you are planning on hosting a Super Bowl party, here are some strategies to limit your liability, as well as protect your guests and others:
  • Know and understand your state’s laws concerning social host liability.
  • Review you homeowners insurance policy and other insurance coverage to determine if there are any exclusions, conditions or limitations your policy might have for this kind of risk.
  • Consider places other than your home to host your party where alcohol service can be managed by a third party.  Alternatively, consider hiring a professional bartender for your party at home.
  • Have guests plan ahead.  Always designate a non-drinking driver before any party or celebration begins.  Don't let guests drink and drive.
  • Serve alcohol responsibility.  No drinking games or other contests, which encourage overservice.
  • Offer plenty of food and snacks, as well as alcohol-free beverages, and encourage the consumption of the same by guests.
  • Stop serving alcohol towards the end of the evening.  In many professional sports venues, alcohol service is cut off in the fourth quarter.  Consider doing the same.
Christian Stegmaier is chair of Collins & Lacy's Retail and Hospitality Practice Group where his focus includes alcohol/Dram Shop liability defense. Additionally, Christian is professor of Hotel & Restaurant Law at the nationally-acclaimed University of South Carolina College of Hospitality, Retail & Sport Management.  He can be contacted at or (803) 256-2660.


Monday, January 13, 2014

New Year’s Resolutions: Don't let volunteer efforts become a legal hazard

A common New Year’s resolution is to volunteer.  In fact, ranks it as one of the top 10 healthiest resolutions one can make, as volunteering has been linked with increased levels of happiness and decreased depression. 

Post by Charles Appleby
While we do not like thinking about legal or safety matters when it comes to things that make us feel good, remembering some key points can help ensure the experience remains a safe and positive one for both the volunteer and the organization.

Tips for organizations that use volunteers:
  • Have volunteers sign a “hold harmless agreement.” This ensures volunteers are aware of any potential dangers and agree not to hold your organization responsible for any injuries.
  • If you run or work for a non-profit or organization that utilizes volunteers with handicap or senior citizens, have volunteers sign the appropriate documents with the protocols listed to affirm they have read and understand all policies and procedures.
  • Make sure there is always adequate supervision.

Tips for volunteers:
  • Ask exactly what you will be doing so you know about any potential hazards or dangers.  For example, find out the weight of materials if you are helping move items like canned goods or coats so you don’t hurt your back, be aware of the temperature of different surfaces if you are helping serve food so you don’t burn yourself, and learn the type of equipment that may be nearby if you are helping with a construction project.
  • Know AND understand all the procedures.  If volunteering with individuals who may have mental or physical limitations, it is very important you clearly understand the protocol of what to do and who to contact in certain situations.

When done safely, volunteering is an incredible way to give back to the community.  With so many incredible organizations and causes for which you can volunteer, it is easy to pick ones that can ensure your time and efforts are going toward something truly near and dear to your heart.


Monday, January 6, 2014

Restaurant Week Begins This Week in South Carolina

Starting Thursday, January 9, South Carolina will be participating in the 11-day celebration that is Restaurant Week. South Carolinian foodies will get a chance to enjoy a variety of exceptional dishes and amazing values during dinner from participating restaurants, both casual and higher-end venues.

Post by Christian Stegmaier
During this event, you can enjoy dinners prepared by some of the most renowned chefs and restaurants in the state at discounted prices. Tickets are not required to participate in Restaurant Week, but it is highly recommended to make reservations as restaurants will fill up quickly.

The main mission of Restaurant Week is to highlight South Carolina as one of the top culinary destinations in the nation. Awareness created through this event showcases the vast dining opportunities we have, which in turn helps put money back into our local restaurants and promotes business growth.

Hotels also benefit from Restaurant Week. Many of the hotels have created special packages to coincide with the culinary celebration. You can view the hotel deals here.

Be sure to support the restaurant and hotel businesses this week by participating in this savory experience. My guess is, you won't be disappointed.

Monday, December 9, 2013

Cell Phone Defense

Cell phones are used everywhere.  Whether it is an old school flip phone, smartphone or tablet, Americans are devoted to, and engrossed with, their electronic gadgets. A piece of web art I ran across depicts a crowd of people walking in the street all staring down at their smartphones.  The caption under the piece reads something to the effect of “Don’t fear the zombie apocalypse - it’s already here".

Post by Claude Prevost
Cell phones are the ultimate distraction.  Because of this distraction, there are laws against texting and driving. 

The distraction may be caused by the utility of smartphones and endless application to aid everyday life. Smartphones could be used for grocery lists or reminders while shopping, especially when managing these tasks during the Holidays.  Consumers also use smartphones to research coupons or compare prices with competitors.  However, shopping with a smartphone may distract a patron from paying attention and looking where they are going.  Store patrons have a duty to watch where they are going and to avoid dangerous conditions.

When an accident happens at a retailer, most businesses have an incident report form in which the store employee records certain details of the accident.  For example: describe the dangerous condition; describe the clothing of the injured person; describe the alleged injuries.  An incident report could reveal that liability is certain, and the claim should be paid to avoid further liability and litigation defense cost. Alternatively, an incident report form could reveal that liability is questionable, and the claim should be defended, often because of mitigating circumstances.

Retailers and risk managers should consider amending their incident report forms to include a question asking whether or not the customer was using his or her smartphone at the time of the alleged accident.  If the customer was using a smartphone at the time of the accident, it would do savvy retailers well to record the fact and use it as an arrow in the defensive quiver. The use of a smartphone by a customer in a premises liability case may be just enough to establish comparative negligence and allow a jury to award a defense verdict or reduce the amount of damages a plaintiff may recover at trial. 

If a retailer has an accident involving a cell phone, that retailer and its attorney should consider asking through discovery if the plaintiff was using a cell phone at the time of  the accident.  If the customer was using a phone, the attorney may be able to establish a comparative negligence defense or otherwise reduce the value of the case.

Distractions caused by cell phone use can also play on the other end of businesses.  Business owners and retailers should likewise make sure employees are not improperly using cell phones on the job.  This may ensure the employee is aware of his or her surroundings and may aid in avoiding an accident. 

Both businesses and consumers can do their part this Holiday shopping season by ditching the cell phone and being more vigilant.

Monday, December 2, 2013

Keeping Your Settlement Agreement Out of Jeopardy

As most claims professionals and lawyers know, the majority of civil cases these days resolve via settlement.  Resolution is generally memorialized by way of written settlement agreements (a/k/a “receipt and release”).  Along with the filed stipulation of dismissal, the settlement agreement is the magic document that enables you to close the file.  And a closed file is a good file.
Post by Christian Stegmaier

Settlement agreements are contracts.  A fundamental component of a contract is the existence of mutual assent.  This means all of the parties are on the same page when it comes to what is being agreed upon.  This blog entry is about getting to that mutual assent with a minimum of disagreement and fuss.

In essence, a settlement agreement equates to “We pay you money and you stop suing us.  Plus, we don’t admit liability.” However, as simple as that sounds, there is a lot more to a tight settlement agreement. The devil can in fact be in the detail.  Unfortunately, in many instances, the details of a settlement agreement may not even be discussed by the parties until after an agreement to settlement is reached.  When this occurs, ultimate resolution can sometimes be put into peril.  That’s because opposing counsel doesn’t cotton to what your client wants in the written agreement.
Detail points that are typically desired and/or required by settling defendants include:
      ·        No admission of liability
·      Confidentiality

·      Express parties to be released

·      Explicit understanding that all liens are to be satisfied from the settlement proceeds

·       Ancillary defense and indemnity language that immunizes the defendant from any subsequent actions by lien holders that were not known to the defendant and/or left holding the bag after settlement because the plaintiff did not satisfy his or her obligations

·      All of the necessary language that takes CMS into account and adequately disposes of any obligations owed by the parties to the federal government
All of the above terms are excellent and should be included in most settlement agreements, especially those involving personal injury.  However, notwithstanding how we may feel about the necessity of including these conditions in a settlement agreement, (for whatever reason) often there is push back from the plaintiff’s counsel.  Where we encounter the most headwinds in settlement agreement discussions are the provisions involving confidentiality, CMS (especially any mention of set-aside), and defense/indemnity involving lienholders.

While we can (sometimes) appreciate opposing counsel’s opposition to our proposed settlement agreement, we still want our desired/mandatory provisions in the deal. So, how do you make your life easier when it comes to ensuring all of your crucial deal points are included in the settlement agreement? Talk to the other side about the pertinent terms and conditions you need in a prospective written agreement before agreeing to settle the case.  One simple strategy is to send a letter to opposing counsel when settlement discussions appear to be on the horizon (e.g., like before mediation) that expressly outlines those terms and conditions that your client requires in the final written agreement. 

If there is going to be disagreement from the other party about certain terms and conditions (i.e., “Under no circumstances can we agree to confidentiality”), it is better to discuss and negotiate those terms in dispute on the front end rather than after the parties have notified the court of settlement and the settlement check has arrived.  Because once those events have occurred, you and I both know the opposing parties tend to become more frantic to get things done and the conversation can become shrill.  Plus-at least in South Carolina state courts-if you have placed the settlement on the record, you arguably can be compelled to consummate settlement irrespective of your conflict with the other party concerning settlement language. 

Like anything else in life, talking things out solves the majority of problems. Quite often, language can be amended to suit the parties and the defendant can get what it wants/needs in the written settlement agreement.  If an understanding about certain provisions can’t be had, then the defendant needs to determine if it live with those provisions excised from the agreement.  The bottom line is that as counsel to you, I’d rather know sooner than later if there is going to be a problem that would block settlement.

Litigation is hard. Look for ways to make it easier. In this instance, early communication with opposing counsel can likely smooth out the potentially rough patches and keep your settlement out of jeopardy.

Christian Stegmaier is chair of Collins & Lacy’s Retail & Hospitality Practice.  Stegmaier represents national and regional leaders in the hotel, restaurant and bar, department store and specialty retail, and live music promotion/presentation sectors doing business in South Carolina.  He can be reached via email at or by telephone at (803) 255-0454.  Follow him on Twitter at @cstegmaier.

Friday, November 22, 2013

How to Keep Your Business on the Nice List: Tips for Holiday Shopping Crowd Control

Effective crowd management should be a year-round priority for retailers, but Black Friday and the ensuing holiday shopping season elevates the importance of crowd control.  According to a recent National Retail Federation (NRF) survey, as many as 140 million Americans plan to shop over Thanksgiving weekend, with 97 million shoppers planning to shop on Black Friday alone.  To help manage the risk presented by an influx of shoppers, NRF has released its Effective Crowd Management Guidelines.  Although these guidelines are useful for special events and promotions held throughout the year, they are particularly helpful in preparing for the busy holiday shopping season.

Post by Amy Neuschafer
The guidelines provide detailed recommendations, but the following are a few general considerations to minimize potential issues:

       ·    Proactively plan and prepare for special events.

·         Have an emergency plan in place to address potential dangers, such as overcrowding, aggressive shoppers, violence, and unexpected natural disasters.

·         Clearly communicate event details to employees and customers through the use of signage, stanchions/barriers, public announcements, and tickets or wristbands for limited or first-come, first-serve items.

·         Strategically place sale items throughout the store to disperse the crowd and better manage traffic flow.

·         Designate knowledgeable employees solely to communicate with customers and attempt to resolve issues.

·         Contact local law enforcement if large crowds are expected and arrange for additional security personnel.

·         Review relevant policies and procedures with employees and advise them who to contact in the event of a situation.

·         Train employees about event details and promotional items, including merchandise placement and timing of special/hourly promotions.

The NRF is a respected industry organization. A customer involved in a personal injury or loss prevention-type incident during a high-traffic special event or promotion relies could rely on the NRF guidelines as evidence of the standard of care in a lawsuit.  Therefore, it’s important to manage risk from the outset by being familiar with the guidelines and incorporating them into your special event or promotion where appropriate.

The NRF’s Effective Crowd Management Guidelines can be found at


Friday, November 8, 2013

DHEC Proposes Changes to Retail Food Establishment Regulation

On October 25, 2013, amendments to Regulation 61-25 proposed by the South Carolina Department of  Health and Environmental Control (DHEC) were published in the State Register.  Regulation 61-25, which governs retail sales of food, applies to restaurants, grocery stores, school cafeterias, and other establishments where food is prepared and served to the public.  Since the regulation was last amended in 1995, there have been many advances in the food industry, including changes in food handling practices, equipment technology, and preparation processes.  The purpose of the proposed amendments is to supply safe, unadulterated food at the retail level by bringing the regulation in conformity with the most recent version of the United States Food and Drug Administration Food Code.

Post by Amy Neuschafer
The proposed amendments are comprehensive and address a wide variety of issues.  For instance, they address topics ranging from employee hand washing and facility cleanliness to cooking temperatures and food preparation practices.  Of note, the proposed regulation would limit employee’s bare-hand contact with ready-to-eat foods under certain circumstances.  In addition, the proposed amendments include lower cold-holding temperatures and higher hot-holding temperatures for food.  The proposed regulation also contains specific requirements for two recent trends in retail food establishments—mobile food units and outdoor pet dining.

Legislative action is required before the proposed amendments to Regulation 61-25 take effect.  Interested parties may make oral and written comments at a public hearing to be conducted by the Board of Health and Environmental Control at its January 9, 2014 meeting.  Written comments must be received by DHEC no later than November 25, 2013. 

The full text of the proposed amendments to Regulation 61-25 can be found at





Thursday, July 18, 2013

Updated South Carolina Building and Fire Codes Include Carbon Monoxide Alarm Requirements Aimed at Protecting Against the “Silent Killer”

In the past several months, the tragic deaths of an elderly couple and a child in two separate incidents in the same North Carolina hotel room have garnered national media attention.  According to North Carolina authorities, the deaths of these individuals are attributable to a carbon monoxide (“CO”) leak originating from a pool heater located in an adjacent room. 

The Centers for Disease Control and Prevention estimates approximately 500 people die each year from accidental, non-fire related CO poisoning.  Many more are sickened from accidental CO exposure, with the National Fire Protection Agency estimating that more than 80,000 non-fire related CO incidents occurred in 2010 alone, and the number is increasing. 

Post by Amy Neuschafer
CO is a poisonous gas that results from the incomplete burning of fuel, such as gasoline, propane, natural gas, oil and wood.  CO enters the bloodstream when inhaled and reduces the ability of blood to transport oxygen to vital organs.  Because CO is odorless and colorless, it is often referred to as the “silent killer.”  In addition, many people ignore the symptoms of CO poisoning, which include headache, nausea, dizziness and confusion.

New versions of the building and fire codes aimed at protecting against dangerous CO poisoning recently went into effect in South Carolina.  Effective July 1, 2013, South Carolina has adopted the 2012 versions of the International Building Code, International Residential Code, and International Fire Code.  These codes require the installation of CO alarms in certain new and existing buildings and are aimed at the most likely sources of CO—cooking and heating appliances and car exhaust.  Among those structures impacted by the new codes are buildings meeting the definition of “Group I” and “Group R” occupancies, such as hotels, boarding house, dormitories, apartment buildings and hospitals.

Section 908.7 of the 2012 International Building Code and §1103.9 of the 2012 International Fire Code make new and existing "Group I" and "Group R" and  occupancies containing a fuel-burning appliance or an attached garage subject to the CO alarm mandate.  However, certain types of parking garages are not considered by the code to be an attached garage, so be sure to consult the code to determine if your facility’s parking garage triggers the CO detection requirement. 

In addition, an exception exists for sleeping or dwelling units which do not themselves contain a fuel-burning appliance or have an attached garage.  CO detectors are not required in such units provided:
  • (1) the unit is located more than one story above or below any story that contains a fuel-burning appliance or attached garage;
  • (2) the unit is not connected by duct work or ventilation shafts to any room containing a fuel-burning appliance or attached garage; and
  • (3) the building is equipped with a common area CO alarm system. 
For more information on whether your facility is required to install CO alarms, contact your local building official. 

For the complete text of the International Codes and South Carolina modifications, visit the South Carolina Building Codes Council website.

For more information on CO poisoning, visit the South Carolina Department of Health and Environmental Control website.


Wednesday, May 8, 2013

It Must Be Something I Ate–Causation in Food Liability Cases

This article was originally published in South Carolina Lawyer, March 2013, at 16 - 19.  Click here for a link to the online version of the magazine, which is produced by the South Carolina Bar.  


Charles Appleby

Have you ever received the unpleasant surprise of a foreign substance in your food?  Or woken up the morning after a meal feeling sick and thought, “It must be something I ate?” Many food liability cases undoubtedly begin with this very thought.  A common theme among food liability cases is the importance of having sufficient proof that the adulterated food proximately caused the alleged illness or damages.  In fact, the outcome in a food liability case often depends on having sufficient proof of causation.

South Carolina Food and Cosmetic Act & Negligence
The South Carolina Food and Cosmetic Act is intended to protect the consumer from adulterated or misbranded food and cosmetics.[1] Under the Act, a food is deemed to be adulterated under a variety of circumstances, including if it contains any poisonous or harmful substance that makes it injurious to health or if it contains any diseased, contaminated,[2] Any entity, such as a restaurant or retailer, violates the Act if it, inter alia, manufactures, sells, delivers, holds, or offers for sale any adulterated food; adulterates any food; or receives in commerce any adulterated food.[3]
Amy Neuschafer
filthy, putrid or decomposed substance.

Proof of a violation of South Carolina Food and Cosmetic Act constitutes negligence per se and supports recovery of damages if the violation proximately caused or contributed to the plaintiff's injury.[4] A plaintiff is required to show negligence with reasonable certainty, not through mere conjecture.  Negligence cannot be proven through the doctrine of res ipsa loquitur.[5] Accordingly, whether alleging negligence based on violation of the Act or another theory, to prevail on a negligence claim arising out of unwholesome food, the plaintiff must prove the food in question was unfit and that it caused his/her illness.[6] 

The central question in food liability cases therefore becomes: “Is it really something you ate?”

Proving Causation
Causation is proved by establishing the plaintiff’s injury would not have occurred “but for” the defendant’s negligence.[7] “It is not sufficient that the malady in question ‘possibly’ or ‘could have’ or ‘might have’ resulted in the injury.”[8] Professor David G. Owen aptly notes the importance of establishing causation in his treatise on product liability law:

In addition to showing that a particular food item was defective, the plaintiff must also link the defective food product to the harm.  In many cases, the causal link between the defective foodstuff and a plaintiff’s harm is undisputed, as when the plaintiff immediately is injured or sickened from consuming food that clearly is defective, as a sirloin steak containing the tip end of hypodermic needle, or a chili dog containing a cockroach.  But if the connection between defective food or drink and a person’s illness is not self-evident, as often is the case, reliable expert testimony may be required to establish the causal link between the defect and the harm.[9]  

Expert testimony is not always necessary to prove causation in an unfit food case.[10]  In Miller v. Atlantic Bottling Corp., the plaintiff allegedly became ill after drinking a bottle of soda containing a harmful foreign substance.  The plaintiff testified she bought the soda, drank a few swallows, and immediately noticed the soda had a “vile smell and taste.”[11]  She then noticed an unidentified foreign substance in the bottom of the bottle.  She immediately began to feel nauseated, her throat and chest hurt, and her mouth began to water.  The defendant contended expert testimony was necessary to establish the substance caused the plaintiff’s illness.  In rejecting this argument, the court recognized that “in many instances expert medical evidence would be required to determine whether an illness resulted from a particular act.”[12] However, the court reasoned expert testimony was not required to establish the foreign substance most probably caused the plaintiff’s illness where she became violently ill immediately after consuming the bottled drink containing the “vile smelling and tasting, and revolting foreign substance.”[13]  In declining to require expert testimony regarding causation, the Miller court clearly took into account the obvious adulterated quality of the soda, as well as the plaintiff’s immediate onset of symptoms.

That being said, the mere showing that a person became sick subsequent to eating food typically is insufficient to establish causation.[14] Courts generally have been skeptical of claims based largely on the theory, ‘I ate it, and then I got sick.’”[15]  For instance, in Fowler v. Coastal Coca-Cola Bottling Co., the court held the plaintiff failed to offer sufficient evidence of causation despite testimony that he became ill an hour and half after drinking a soda containing a slimy substance later identified as yeast.[16] In reaching its conclusion, the court pointed out the plaintiff’s treating physician testified a virus that was prevalent in the community at the time was the likely cause of the plaintiff’s symptoms, and the physician found no evidence the plaintiff’s illness was attributable to the ingestion of yeast.  Although the court did not address whether expert testimony was necessary to establish causation, the treating physician’s alternative explanation for the plaintiff’s symptoms and inability to link the foreign substance to these symptoms were key to the court’s decision.

South Carolina courts have specifically required expert medical testimony to establish causation where there is not a reasonable basis upon which to conclude that the illness was the natural and probable consequence of consuming the contaminated food or beverage.[17]  In Burr v. Coca-Cola Bottling Co. of Columbia, Inc., the plaintiff began experiencing nausea and diarrhea two hours after consuming a bottled beverage containing a foreign substance. The court noted there was no medical testimony as to the cause of plaintiff’s illness, and common experience showed the plaintiff’s symptoms often occurred from other causes. The court held that “[i]n view of the nature of the illness, the lapse of two hours before the first symptoms appeared renders the sequence of events too remote, absent other testimony, upon which to base a finding of causal connection.”[18]

An unreported decision from the District of South Carolina similarly reinforces the need for expert testimony where an average juror could not conclude a causal link existed between the allegedly unfit food and the plaintiff’s subsequent illness.  In Griffin v. Wilcohess, LLC, the court granted summary judgment for the defendant because the plaintiff failed to establish his salmonella poisoning was caused by consuming defendant’s cheeseburger.[19] To establish causation, the plaintiff pointed to medical records indicating he was diagnosed with salmonella and the allegation he was the only member of his family to eat the burger and the only member to become ill.  The defendant offered the affidavit of a medical expert opining the passage of time between the plaintiff’s consumption of the cheeseburger and the onset of his symptoms was not sufficiently long enough for the salmonella bacteria to incubate.  Rather, the defendant’s expert opined the plaintiff’s illness more likely resulted from the eggs or oysters he consumed the previous day. 

In granting the defendant’s motion for summary judgment, the court reasoned there was no evidence the cheeseburger was unfit or that is caused the plaintiff’s illness. To the contrary, the evidence showed defendant maintained a 100 percent food inspection rating and of the 3,452 food items sold at defendant’s restaurant on the day the plaintiff purchased his cheeseburger, the only report of illness came from the plaintiff.  The court further found expert testimony was required to establish the cheeseburger caused the plaintiff’s salmonella.  Because the plaintiff offered evidence only that he had salmonella, but no expert opinion linking the infection to the defendant’s cheeseburger, the court granted summary judgment. Accordingly, depending on the facts of a particular case, expert testimony may be necessary to establish causation.

Court Rules Plaintiff Bit off More than He Could Chew
A recent decision from the Eastern District of North Carolina is another example of the key role proof of causation plays in food liability cases.  In Manley v. Doe, the plaintiff filed suit against a Wendy’s franchisee after a two-inch plastic fragment bearing the Wendy’s logo was removed from his lung.[20]

In 2007, the plaintiff began to suffer from episodes of fatigue, coughing, choking, and gastrointestinal problems. Almost two years later, it was determined an approximately two-inch long fragment from a plastic eating utensil was lodged in the plaintiff’s lung. When the fragment was removed, it was found to be embossed with part of the Wendy’s logo. The plaintiff brought suit against a Wendy’s franchisee, claiming he unknowingly consumed the fragment while eating a hamburger during one of his four-to-five visits to the restaurant in the months prior to the onset of his symptoms.

At first glance, this case might sound like a slam dunk. After all, the fragment did bear the Wendy’s logo and the plaintiff had eaten at Wendy’s in the months before he fell ill. Nonetheless, the district court found the plaintiff’s theory of the case tough to swallow and granted summary judgment in favor of the restaurant. The plaintiff relied on circumstantial evidence to prove a defect in a hamburger (i.e., the plastic fragment) the restaurant sold to him caused his injuries. Although there appears to have been no dispute that his condition was caused by the fragment, the key issue was whether the fragment became lodged in his lung while eating a Wendy’s hamburger.

The court noted there was no evidence the fragment came from the particular Wendy’s franchisee named as a defendant in the case. Furthermore, although the plaintiff’s doctors testified the fragment caused his symptoms, their testimony did not to prove how the fragment entered his lung. The restaurant’s experts, on the other hand, testified a person could unknowingly inhale such an object only if he suffered from “severe mental status depression,” which would suppress the coughing reflex. One cause of this condition is intoxication, and despite the plaintiff’s denials, there was evidence he abused drugs and alcohol in the year he became ill. Although the plaintiff testified he was never intoxicated during his visits to Wendy’s, the defense experts concluded the fragment entered the plaintiff’s lung due to suppressed gag and cough reflexes while he was under the influence.

The defense’s position was supported by the absence of food particles in the plaintiff’s lung. Because the lungs do not contain enzymes to break down food like those found in the stomach, if food had entered the lungs with the fragment as plaintiff alleged, then food particles would still have been present when the fragment was removed.

Finally, the court relied on the absence of other similar incidents at the franchisee’s restaurants to reject the plaintiff’s theory of causation. During a two-year period, the franchisee served approximately 36 million customers, but received only 21 customer complaints involving foreign objects in food. However, none of these complaints involved pieces of plastic eating utensils. After considering the evidence, the court concluded no reasonable jury could find a defect in the hamburger the restaurant sold to the plaintiff caused his injuries.

Conclusion – Follow the Facts
The facts giving rise to food adulteration cases are often so disgusting and disturbing that proximate causation might seem like a foregone conclusion.  Although it may seem like a no-brainer that the foreign substance in the plaintiff’s sandwich is responsible for his ensuing illness or that the plaintiff’s last meal is to blame for his symptoms, causation should never be taken for granted.  The facts of each case should be closely examined to determine if expert testimony is necessary to establish the adulterated food or beverage proximately caused plaintiff’s illness.

Amy Neuschafer focuses on retail, hospitality and entertainment law in Collins & Lacy, P.C.’s Myrtle Beach office.

Charles Appleby is an attorney focusing on retail, hospitality and entertainment law in Collins & Lacy, P.C.’s Columbia office.

[1] See generally S.C. Code Ann. §§ 39-25-10 et seq.
[2] S.C. Code Ann. § 39-25-100.
[3] S.C. Code Ann. § 39-25-30.
[4] Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976), Fowler v. Coastal Coca-Cola Bottling Company, Inc., 252 S.C. 579, 167 S.E.2d 572 (1969).
[5]Crider v. Infinger Transp. Co., 248 S.C. 10, 148 S.E.2d 732 (1966); Eickhoff v. Beard-Laney, 199 S.C. 500, 20 S.E.2d 153 (1942);. 
[6] Miller v. Atlantic Bottling Corp., 259 S.C. 278, 281, 191 S.E.2d 518, 519 (1972); Burr v. Coca-Cola Bottling Co. of Columbia, Inc., 256 S.C. 162, 166, 181 S.E.2d 478, 480 (1971).
[7] Hurd v. Williamsburg County, 353 S.C. 596, 579 S.E.2d 136 (Ct. App. 2003).
[8] 32 S.C. Jur. Witnesses § 79 (2006) (citing Scoggin v. McClellion, 321 S.C. 264, 468 S.E.2d 12 (Ct. App. 1996); Gambrell v. Burleson, 252 S.C. 98, 165 S.E.2d 622 (1969)).
[9] David G. Owen, Products Liability Law 478 (West 2005) (internal citations omitted).
[10]Miller, 259 S.C. 278, 191 S.E.2d 518 (holding the plaintiff’s description of “repulsive” soda that immediately made him nauseated was enough to create an inference of food poisoning, and expert testimony was not required); Turner v. Wilson, 227 S.C. 95, 102, 86 S.E.2d 867, 870 (1955) (upholding judgment for the plaintiff in a food poisoning case which was based wholly on circumstantial evidence); Kyle v. Swift & Co., 229 F.2d 887, 888-89 (4th Cir. 1956) (stating circumstantial evidence may consist of proof that other people who ate the same food also became sick).
[11] Miller, 259 S.C. at 280 191 S.E.2d at 519.
[12] Id. at 282, 191 S.E.2d at 520.
[13] Id.
[14] Coward, 267 S.C. 423, 229 S.E.2d 262 (plaintiff’s testimony her tooth struck a hard object while eating “Cracker Jack” popcorn was insufficient to establish her broken tooth was caused by any adulteration in the popcorn); Meyer v. Super Discount Mkts., 501 S.E.2d 2, 4 (Ga. Ct. App. 1998); Castleberry’s Food Co. v. Smith, 424 S.E.2d 33, 36 (Ga. Ct. App. 1992). 
[15] 47 Am. Jur. Proof of Facts 3d § 47 (2012).
[16] 252 S.C. 579, 167 S.E.2d 572.
[17] Burr, 256 S.C. at 165-66, 181 S.E.2d at 480.
[18] Id.
[19] Griffin v. Wilcohess, LLC, No. 0:10-cv-00489-JFA, 2010 WL 3803695 (D.S.C. 2010).
[20] 849 F. Supp. 2d 594 (E.D.N.C. 2012).