United States District Court, N.D. Mississippi, Greenville Division
OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
the Court is Quality Restaurant Concepts, LLC's motion
for summary judgment. Doc. #44.
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).
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. 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.
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.
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. Doc. #1.
December 21, 2018, Quality Restaurant moved for summary
judgment. Doc. #44. The motion is ...