Wednesday, June 27, 2012

Court rules plaintiff bit off more than he could chew

Post by Amy Neuschafer
A recent decision from the Eastern District of North Carolina reminds us of the key role proof of causation plays in food liability cases. Manley v. Doe, No. 7:10-CV-154-D (E.D.N.C. February 2, 2012) involves a suit filed against Wendy’s concerning a two-inch plastic fragment that was removed from the plaintiff’s lung.

Here’s how it started. In 2007, the plaintiff began to suffer from episodes of fatigue, coughing, choking, and gastrointestinal problems. Almost 2 years later, it was determined an approximately 2-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 4-5 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 for the plaintiff. 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. What other explanation could exist for how the fragment ended up in the plaintiff’s lung?

The district court, applying North Carolina law, 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 plaintiff’s denials, there was evidence he abused drugs and alcohol in the year he became ill. Despite the plaintiff's testimony that 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 have still 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 2-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 that a defect in a hamburger that the restaurant sold to the plaintiff caused his injuries.

Practice Point: In short, the importance of causation in a food liability case is by no means a new concept. However, this case reinforces that causation should never be overlooked—even when it might at first appear to be a foregone conclusion.

Monday, June 18, 2012

Workers' Compensation Issues in Doscher's Case

Post by Kristian Cross
As Bennett blogged last week, a Charleston grocery store recently prevailed in a ruling involving a coverage dispute after a shooting in the store. As you will recall, the facts of the underlying action alleged Doscher’s employed Burton Thorne as a grocery store bagger, and Thorne was shot by a fellow employee in the break-room during one of Thorne’s work shifts. Anita Thorne, as Guardian ad Litem for Burton Thorne, initially filed a workers’ compensation claim but voluntarily dismissed it before a ruling was issued.  Anita Thorne later brought suit against Doscher’s in the Court of Common Pleas for Charleston County asserting causes of action for negligence based on negligent hiring, training, retention, management, and supervision. The complaint alleged Doscher’s failed to take adequate steps to make the workplace safe and to protect Thorne after learning of threats by the shooter.
The underlying facts to Pennsylvania National Mutual Casualty Insurance Company v. DOSCHER'S SUPER MARKETS, Dist. Court, D. South Carolina 2012, bring up two common workers’ compensation questions.

1) Can an employee sue his or her employer? If both the employee and employer are subject to the Act, workers’ compensation is the exclusive remedy of an employee against an employer for injury or death by accident.  S.C. Code Ann. §42-1-540.  However, an intentional tort is not an “accident” within the Act and an employee’s suit at common law against an employer is not barred by the exclusivity doctrine of §42-1-540.  An employee cannot recover twice for the same injury, but may elect to pursue benefits under the Act or damages under common law.

2) Is an assault by a co-employee compensable under the Act? For an assault to be compensable under the Act, it must arise out of and in the course of employment. The parties in this case agreed the shooting occurred in the course of his employment.  The issue was whether the shooting arose out of his employment.  The court in this case pointed out, the phrase “arising out of” is interpreted differently in workers’ compensation policies versus CGL policies.  South Carolina courts construe workers’ compensation policies in favor of a finding that the accident did “arise out of” the employment, whereas, CGL policy exclusions are construed in favor of finding that an accident did not “arise out of” the employment.  “Arise out of” is narrowly defined as “caused by” in CGL policies such as the one in this case. However, the phrase is more broadly construed in the workers’ compensation context and an employee only has to prove a causal connection between the assault and his or her employment to be covered under the Act. 
Thorne and others testified that the shooting occurred because of the shooter’s jealousy over Thorne’s friendship with a female co-employee. Generally, assaults arising out of purely personal transactions are not considered compensable.  However, Thorne allegedly reported the shooter’s threats to his supervisor. The case was voluntarily dismissed before the Commission could make a ruling on whether benefits were owed under these circumstances.
Practice tip:  A workers’ compensation policy does not protect you against liability from all injuries that occur at work.  Look to both your CGL and workers’ compensation policies when you have claims, like an assault of an employee, which may be dual in nature. 

Tuesday, June 5, 2012

Doscher’s has it in the bag: A local Charleston grocery store prevails over Penn National Insurance Company in coverage dispute

Post by Bennett Crites
A Charleston grocery store prevailed in a recent ruling involving a coverage dispute after a shooting in the store. In Pennsylvania National Mutual Casualty Insurance Company v. DOSCHER'S SUPER MARKETS, Dist. Court, D. South Carolina 2012, Anita Thorne, as Guardian ad Litem for Burton Thorne, brought suit in the Court of Common Pleas for Charleston County with respect to injuries her son sustained when he was shot by a coworker at Doscher’s Super Market.  As a result, Penn National Insurance Company, Doscher’s insurer, subsequently filed suit against Doscher’s in United States District Court regarding Penn National’s duty to defend and indemnify Doscher’s in the underlying state court action.

The facts of the underlying tort action alleged that Doscher’s employed Burton Thorne as a grocery store bagger, and that Thorne was shot by a fellow employee in the break-room during one of Thorne’s work shifts.  The underlying complaint alleges that the employer failed to take adequate steps to make the workplace safe and to protect the defendant-employee, Burton Thorne, after learning of threats by the co-worker. Thorne and others testified that he was shot because of the shooter’s jealousy over Thorne’s friendship with a fellow female employee, not because of a work-related dispute, and that the shooting coincidentally happened to take place on the premises of Doscher’s.

The CGL policy at issue excluded coverage for bodily injury to an “‘employee’ of the insured arising out of and in the course of … employment by the insured.” The only dispute here was whether Thorne’s injuries arose out of his employment.  In considering the cross motions for summary judgment, the judge noted that South Carolina courts have interpreted the term “arising out of” when used in an insurance policy exclusion, to be narrowly construed to mean “caused by.”

Viewing the evidence in the light most favorable to the insurer, Judge David Norton could not find that the alleged assault was “caused by” and “arose out of” the employment of Thorne. Rather, the evidence showed that the incident was caused by a personal dispute. Therefore, the employer’s liability exclusion does not apply, and therefore Penn National was not relieved of its duty to defend and indemnify the employer.

Only time will tell how this case will affect other CGL policies as this is a fact-specific inquiry.  To defend or not to defend in this matter? It appears we have an answer, unless the Fourth Circuit says otherwise.