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McGinty v. Grand Casinos of Mississippi, Inc.

Supreme Court of Mississippi, En Banc

June 14, 2018


          DATE OF JUDGMENT: 09/21/2012







         ¶1. Joe and Dianne McGinty sued Grand Casinos of Mississippi Inc.-Biloxi alleging negligence and breach of implied warranty of merchantability for serving unfit food. The trial court granted summary judgment in favor of Grand Casinos of Mississippi Inc.-Biloxi as to both claims. The Court of Appeals affirmed the trial court's grant of summary judgment as to the negligence claims, but reversed the trial court's grant of summary judgment as to the breach-of-implied-warranty claims. We granted certiorari. We affirm the judgment of the Court of Appeals, and we affirm in part and reverse in part the judgment of the circuit court.


         ¶2. According to their depositions, on September 20, 2004, Joe and Dianne[1] McGinty ate breakfast and a snack at their home in Brandon, Mississippi. That evening, they ate dinner at LB's Steakhouse[2] in Gulfport, Mississippi. They each had prime rib and a glass of wine with dinner. They then drove to the Grand Casinos of Mississippi, Inc.- Biloxi (Grand Casinos) in Biloxi, Mississippi. They gambled for several hours and drank more wine; however, they did not eat any more food. They went 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 Casinos. Mr. McGinty ordered "Mama's Eggs and Chops, " which included two grilled pork chops. Mr. McGinty took a bite of the pork chop and "didn't like it." Therefore, Mrs. McGinty finished the remainder from his plate.

         ¶4. Mr. McGinty testified that "somebody dropped the ball with . . . that meat that we had." Counsel then asked, "Why do you think it was the meat? And when I'm talking about the meat, I'm talking about the pork chop." Mr. McGinty stated, "Because it tasted bad." On the other hand, Mrs. McGinty did not remember the pork chops "tasting funny." Mr. McGinty also was asked: "Do you think it's possible that you could have eaten somewhere - something else that did not - was not at Grand Casinos that caused you and [Dianne] to get sick?" Mr. McGinty replied, "No." When asked why he thought that, he stated:

Because of the length of time that - it was the only thing I had eaten was up at the other Grand. So it was either - that prime rib, they - they're famous for - they were famous for prime rib. And the only thing that we had eaten was the next morning, and it tasted bad. You know, when you - it looked good, but it just tasted bad.

         ¶5. After breakfast, the McGintys rode in a limousine provided by the Grand Casinos to New Orleans, Louisiana. They each drank only water in the limousine. However, in the limousine, Mrs. McGinty began to feel nauseated, and she experienced diarrhea at the airport. They then caught a flight to Los Angeles, California. About an hour into the flight, Ms. McGinty began vomiting. Mr. McGinty also fell ill. He began to sweat profusely, feel nauseous, and become incontinent. The flight attendants gave him oxygen and moved the couple to the back of the plane. Mr. McGinty vomited and had diarrhea as well. The McGintys did not eat or drink anything on the airplane.

         ¶6. When the plane landed in Los Angeles, Mr. McGinty was carried off the airplane on a stretcher by emergency medical technicians. The McGintys were transported to a local hospital by ambulance. On the way to the hospital, Mrs. McGinty began to vomit a large amount of blood. At the hospital, she received two blood transfusions and was treated for an esophageal tear. Mr. McGinty was discharged from the hospital the same day, but Mrs. McGinty stayed in the hospital for three days. Mrs. McGinty stated no tests were conducted for food poisoning at the hospital.

         ¶7. Upon returning home, Mrs. McGinty saw her general doctor. Prior medical records from her general doctor show Mrs. McGinty had a history of digestive problems. Two months before the alleged food poisoning, her medical records noted that she 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, Mrs. McGinty's medical records show that she had vomited blood in March 2003, which also occurred prior to the alleged food poisoning.

         ¶8. On October 18, 2004, Dr. Jerome Helman, Mrs. McGinty's treating physician from the California hospital, wrote a letter to Mrs. McGinty and enclosed her medical reports. In the letter, Dr. Helman stated Mrs. McGinty's "upper gastrointestinal bleeding was caused by the severe vomiting, which related to food and drink [she] had prior to the event."

         ¶9. On September 13, 2007, the McGintys filed suit in Harrison County Circuit Court against Grand Casinos for negligence and breach of the implied warranty of merchantability. 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. Grand Casinos argued the McGintys had failed to present lab analyses proving their illnesses were caused by tainted food eaten at Grand Casinos, and they had failed to offer sufficient medical-expert testimony on causation.

         ¶10. The trial court granted Grand Casinos' motion for summary judgment. The McGintys appealed. The Court of Appeals held the trial court's judgment, as it pertained to the McGintys' negligence claims, was proper because there was no genuine issue of material fact as to whether Grand Casinos had breached its duty of care. The Court of Appeals then reversed the trial court's judgment with respect to the breach-of-implied-warranty claims, holding sufficient evidence was presented to allow a jury reasonably to infer the food consumed by the McGintys at the Island View Café caused their illnesses. Grand Casinos filed a petition for certiorari, and we granted it.[3]


         (1) Whether summary judgment was properly granted on the McGintys' negligence claim.

         (2) Whether summary judgment was properly granted on the McGintys' breach-of-implied-warranty-of-merchantability claim.


         ¶11. With a summary-judgment motion, the mover bears the initial burden of supporting the motion for summary judgment. Miss. R. Civ. P. 56. "When a motion for summary judgment is made and supported . . . an adverse party 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." Miss. R. Civ. P. 56.

         ¶12. Summary judgment is proper "if 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." Miss. R. Civ. P. 56(c). In other words, summary judgment is appropriate where the nonmoving party fails to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Buckel v. Chaney, 47 So.3d 148, 153 (Miss. 2010). The evidence is reviewed in the light most favorable to the nonmoving party, and the Court reviews the grant or denial of summary judgment de novo. Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss. 2011).


         (1) Whether summary judgment was properly granted on the McGintys' negligence claim.

         ¶13. The trial court and the Court of Appeals placed great weight on Goodwin v. Misticos, 42 So.2d 397 (Miss. 1949). In Goodwin, Mr. Goodwin, a restaurant patron, became ill within a few hours of eating corned beef. Goodwin, 42 So.2d at 397. Mr. Goodwin later was diagnosed with ptomaine poisoning and died as a result of his illness. Id. Mr. Goodwin's wife, Mrs. Goodwin, sued the restaurant for negligence. Id. at 397-98.

         ¶14. Mrs. Goodwin presented testimony regarding Mr. Goodwin's eating habits on the day he ate the corned beef. Id. at 398. She also testified that her corned beef did not "taste right, " but Mr. Goodwin did not complain about his corned beef. Id. Further, she stated he became sick shortly after eating the corned beef. Id. Dr. Copeland testified "that ptomaine poisoning . . . is a bacterial infection of the alimentary canal, carried there generally by eating food, drinking water, or something." Id. at 402. The trial court granted a directed verdict in favor of the restaurant. Id. at 399.

         ¶15. On appeal, the Goodwin Court considered what reasonable inferences could be drawn based on the proof presented. Id. at 400-03. The Goodwin Court stated, "[N]o such inference upon inference will be permitted to prevail when the fact sought to be established by such inference upon inference is capable of more satisfactory proof by direct, or positive or demonstrative, evidence, within the reasonable power of the party holding the burden to produce." Id. at 402. The Goodwin Court then analyzed the proof presented and what reasonable inferences could be drawn. It stated, "From the proof the jury could reasonably find: (1) That Mr. Goodwin ate the corned beef; (2) in one and one-half hours he became ill; and (3) from these two proven facts the jury could reasonably infer there was a germ in the corned beef that made him sick." Id. at 402. The Goodwin Court then concluded what could not be reasonably inferred: " We cannot from this inference draw another inference that the bacteria got into the food or drink as a result of the negligence of the restaurateur." Id. at 403. Therefore, the Goodwin Court affirmed the trial court's judgment. Id.

         ¶16. Here, the McGintys presented proof of the following: (1) they ate a pork chop at a Grand Casinos' restaurant, and Mr. McGinty testified it tasted bad; (2) hours after tasting the pork chop, they experienced vomiting and diarrhea; and (3) more than three weeks after they experienced these symptoms, a physician wrote Mrs. McGinty a letter, stating her prior symptoms were "related to food and drink [she] had prior to the ...

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