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Johnson v. Quality Restaurant Concepts, LLC

United States District Court, N.D. Mississippi, Greenville Division

August 16, 2019

ROBBIE JOHNSON PLAINTIFF
v.
QUALITY RESTAURANT CONCEPTS, LLC d/b/a Applebee's Neighborhood Grill and Bar, et al. DEFENDANTS

          OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is Quality Restaurant Concepts, LLC's motion for summary judgment. Doc. #44.

         I

         Summary Judgment Standard

         “Summary judgment is appropriate where there is no genuine issue of material fact and the parties are entitled to judgment as a matter of law.” Sec. & Exch. Comm'n v. Arcturus Corp., 928 F.3d 400, 409 (5th Cir. 2019). “A movant for summary judgment need not set forth evidence when the nonmovant bears the burden of persuasion at trial.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019). Rather, the moving party “may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party's claim.” Id. While, “[a]ll reasonable inferences must be drawn in favor of the nonmovant, … a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Arcturus Corp., 928 F.3d at 409 (quotation marks omitted).

         II

         Factual Background

         On Sunday, June 11, 2017, Robbie Johnson ordered a Caesar salad at an Applebee's restaurant in Grenada, Mississippi. Doc. #47-3 at 27-28, 29; Doc. #44-2 at 19. Johnson, who had eaten only some fruit earlier in the day, thought the salad “tasted good and didn't seem … weird in any way.” Doc. #44-2 at 20; Doc. #44-3 at 23. At 3:00 a.m. or 4:00 a.m. the next morning, Johnson woke up sweating and with stomach pain. Doc. #44-3 at 24. When the pain worsened, Johnson made an appointment to see a doctor on June 13, 2018. Id. A subsequent CT examination of Johnson's abdomen revealed a “4 cm foreign body” in the small bowel. Doc. #47-1 at PageID #244.[1] Johnson underwent abdominal surgery on June 15, 2017. Id. at PageID #238. During the procedure, a surgeon removed a toothpick from Johnson's small bowel. Id. at PageID #237.

         The Applebee's location at issue did not stock or use toothpicks. Doc. #52-1 at ¶ 4. The kitchen did, however, use “frill picks” to measure the temperature of meat. Id. These items, which were stored on the opposite end of the kitchen from the salad preparation area, “are 10 cm. in length, completely cylindrical, about three times the size of a regular tooth pick in circumference and have plastic ‘frills' at the top that are color coded ….” Id.

         III

         Procedural History

         On January 29, 2018, Johnson filed a complaint in the Circuit Court of Grenada County, Mississippi, against Quality Restaurant Concepts, LLC d/b/a Applebee's Neighborhood Grill and Bar; Jane Doe; and Kathy Seznack. Doc. #9-2 at 1. The complaint alleges Johnson was injured after consuming a salad that contained a toothpick at Applebee's. Id. at 2-3. On March 14, 2018, Quality Restaurant removed the state court action to the United States District Court for the Northern District of Mississippi on the basis of diversity jurisdiction.[2] Doc. #1.

         On December 21, 2018, Quality Restaurant moved for summary judgment. Doc. #44. The motion is ...


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