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Mcginty v. Grand Casinos of Mississippi, Inc.

Court of Appeals of Mississippi

May 13, 2014

JOE MCGINTY AND DIANE MCGINTY APPELLANTS
v.
GRAND CASINOS OF MISSISSIPPI, INC.-BILOXI APPELLEE

DATE OF JUDGMENT: 09/21/2012

HARRISON COUNTY CIRCUIT COURT ROGER T. CLARK

ATTORNEYS FOR APPELLANTS: BRANDI DENTON GATEWOOD DAVID NEIL MCCARTY

ATTORNEYS FOR APPELLEE: R. DAVID KAUFMAN JULIE JARRELL GRESHAM TAYLOR BRANTLEY MCNEEL

BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

BARNES, J.

¶1. In this personal-injury case, Joe and Diane McGinty sued Grand Casinos of Mississippi Inc. – Biloxi (Grand Casinos) for negligence and breach of implied warranty of merchantability for serving them unfit food. The trial court granted Grand Casinos' motion for summary judgment, and the McGintys now appeal. We affirm the grant of summary judgment regarding the negligence claim but reverse and remand on breach of warranty.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On September 20, 2004, the McGintys ate breakfast and a snack for lunch at their home in Brandon, Mississippi, before driving to the Mississippi Gulf Coast, w here they were to be guests of the Grand Casinos – Biloxi. They were part of a group of casino patrons for whom the casino had arranged a trip from its Biloxi, Mississippi casino to a casino in Reno, Nevada. That night, they had dinner at LB's Steakhouse at the Grand Casino in Gulfport.[1]They each had prime rib and a glass of wine with dinner, and then they drove to the Grand Casino in Biloxi and checked into their hotel. There, they gambled for several hours and drank more wine, but ate no more food, before going to bed between 10:00 p.m. and midnight.

¶3. The McGintys awoke early the next morning and ate breakfast at 5:30 a.m. at the Island View Café inside the Grand Casino – Biloxi. Joe ordered "Mama's Eggs and Chops" which included two grilled pork chops. Joe took a bite of the pork chops, and "didn't like it"; so Diane finished the remainder. She did not remember the pork chops "tasting funny, " but Joe did. Then they rode in a limousine provided by the Grand Casino to New Orleans, Louisiana, to catch a flight to Los Angeles, California. They each drank only water in the limousine. In the vehicle, Diane began to feel nauseated. When they arrived at the airport, she experienced diarrhea. About an hour into the flight, Diane began vomiting. Joe, too, began to sweat profusely, feel nauseous, and become incontinent; so the flight attendants gave him oxygen and moved the couple to the back of the plane. Joe vomited and had diarrhea as well. Neither Diane nor Joe ate or drank anything on the airplane.

¶4. When the plane landed in Los Angeles, Joe was carried off the airplane on a stretcher by emergency medical technicians. Both Joe and Diane were transported to a local hospital by ambulance. On the way to the hospital, Diane began to vomit a large amount of blood. At a local hospital, Diane received two blood transfusions and had to be treated for an esophageal tear by electrocautery and medication. Joe was discharged from the hospital the same day, but Diane had to stay for three days. Diane stated no tests were taken for food poisoning at the hospital because the physician decided, due to her emergency condition, that he was not concerned about taking the time to run any tests. Upon returning home, Diane saw her family physician, Dr. Wade.

¶5. Prior medical records from before the incident from Dr. Wade's office in July 2004, which were entered into evidence, showed Diane suffers from a history of digestive problems. Two months before the alleged food poisoning, Dr. Wade noted Diane suffered from "abdominal pain within 30 minutes after eating which is chronic/recurring frequently, . . . [c]rampy/colicky abdominal pain, diarrhea 15-30 minutes after eating which is chronic." Further, Diane indicated in medical records from March 2003 that she had vomited blood in the past, prior to the food-poisoning incident.

¶6. On October 18, 2004, Dr. Jerome Helman, her treating physician at the hospital in California during the incident, wrote a letter to Diane and enclosed her medical reports. He stated her "upper gastrointestinal bleeding was caused by the severe vomiting, which related to food and drink [she] had prior to the event."

¶7. On September 13, 2007, the McGintys filed suit against Grand Casinos for negligence in serving food improperly prepared, and breach of implied warranty of merchantability for serving food not fit for human consumption. In January 2012, Grand Casinos filed a motion for summary judgment, arguing the McGintys could not meet their burden of proof to establish a food-poisoning claim under Mississippi law because the McGintys did not present any lab analyses proving their illnesses were caused by tainted food eaten at the Grand Casinos, and offered insufficient medical expert testimony on causation. After a hearing, the trial court granted Grand Casinos' motion for summary judgment. The trial court opined that "the Mississippi Supreme Court has rejected the use of circumstantial evidence in food[-]poisoning cases, " citing Goodwin v. Misticos, 207 Miss. 361, 42 So.2d 397 (1949), which the trial court found "virtually identical" to the present case. The trial court concluded that the McGintys failed to meet their burden of proof in establishing their claims. The McGintys timely appealed, raising one issue: whether the trial court applied an improper summary-judgment standard. The M cGintys admitted they only provided circumstantial evidence, but argue it was sufficient to defeat summary judgment.

¶8. We find the trial court's conclusion, as it pertains to the negligence claim, was proper because there was no genuine issue of material fact as to whether Grand Casinos breached its duty of care. Therefore, we affirm the judgment as to that claim.

¶9. However, we disagree with the trial court's conclusion with respect to the claim for breach of implied warranty of merchantability, finding there is sufficient evidence to allow a jury to reasonably infer the food consumed by the McGintys at the Grand Casinos' restaurant caused their illness. Therefore, we reverse the trial court's judgment and remand, as there is a genuine issue of material fact as to that claim.

STANDARD OF REVIEW

¶10. The standard of review for a trial court's grant or denial of summary judgment is de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (¶11) (Miss. 2009) (citing One S. Inc. v. Hollowell, 963 So.2d 1156, 1160 (¶6) (Miss. 2007)). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citing M.R.C.P. 56(c)). Stated differently, "where the non-movant fails to establish the existence of an essential element of that party's claim, " summary judgment is appropriate. Pigg v. Express Hotel Partners LLC, 991 So.2d 1197, 1199 (¶4) (Miss. 2008). A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response . . . must set forth specific facts showing that there is a genuine issue for trial." Id. (quoting M.R.C.P. 56(e)). "[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." Waggoner, 8 So.3d at 152 (¶11). "The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Id. at 152-53 (¶11).

DISCUSSION

A. The Trial Court's Findings

¶11. In its conclusions of law, the trial court did not analyze the negligence and breach of implied warranty of merchantability claims separately, but appeared to combine them as one "food poisoning" claim under a negligence standard. The trial court found Goodwin particularly relevant and controlling, holding that Mississippi law requires "definitive proof of food poisoning which cannot be inferred from circumstantial evidence." Its order stated that for the McGintys to succeed on their claims, they were "required to (1) present evidence" that the food "was infected by poisonous bacteria, " which could only be established by a chemical analysis, and (2) to provide evidence that the bacteria got into the food through a lack of care by Grand Casinos. The trial court also held that the McGintys must "present expert medical testimony to establish proximate causation, and the expert medical testimony must be based on more than just the history provided by the [McGintys]." The trial court concluded that the McGintys must provide, "[a]t a minimum, . . . concrete evidence[, ]" including laboratory tests linking the illness to the bacteria in the food, and that the McGintys' "case [was] based on speculation and conjecture."

B. Goodwin v. Misticos

¶12. The trial judge heavily relied on the facts of Goodwin, claiming they were "virtually identical" to the present case. We find Goodwin's facts analogous, but not identical. In Goodwin, a husband and wife both became violently ill after eating corned beef at a restaurant two hours earlier. Goodwin, 207 Miss. at 371, 42 So.2d at 398. The husband was diagnosed with ptomaine poisoning and died as a result of his illness. Id. at 369, 42 So.2d at 397. The wife filed suit, alleging an inference of negligence could be drawn from the following evidence: the plaintiffs ate the corned beef at the restaurant, and the wife said it "doesn't taste right"; they became ill one and one-half hours later; the treating physician testified that ptomaine poisoning was the cause of the illnesses; and ptomaine poison is carried by eating food or drinking water. Id. at 379-80, 42 So.2d at 402-03.

¶13. The Goodwin court held:

[A] plaintiff, in order to recover, must, assuming that the action is not one for breach of warranty, establish carelessness or negligence on the part of the restaurant keeper, for to shift the burden upon mere proof of the injury would in ...

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