{ "id": 4357422, "name": "MICHAEL RAY WILLIAMS, Plaintiff v. O'CHARLEY'S, INC., Defendant", "name_abbreviation": "Williams v. O'Charley's, Inc.", "decision_date": "2012-06-19", "docket_number": "No. COA11-1467", "first_page": "390", "last_page": "397", "citations": [ { "type": "official", "cite": "221 N.C. App. 390" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "916-17" }, { "page": "915" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "233" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "753", "parenthetical": "internal quotation marks omitted" }, { "page": "754" }, { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "232", "parenthetical": "internal quotation marks omitted" }, { "page": "234" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "493 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652898 ], "year": 1997, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0166-01" ] }, { "cite": "134 N.E. 265", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1922, "pin_cites": [ { "page": "266" }, { "page": "265-66" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "6 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1937, "pin_cites": [ { "page": "435" }, { "page": "436" }, { "page": "435" } ], "opinion_index": 0 }, { "cite": "208 S.W.2d 749", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 3, "year": 1948, "pin_cites": [ { "page": "750" }, { "page": "751" } ], "opinion_index": 0 }, { "cite": "395 P.2d 414", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10576855 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "415" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/p2d/395/0414-01" ] }, { "cite": "2 A.L.R. 5th 1", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "year": 1992, "opinion_index": 0 }, { "cite": "582 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "159 N.C. 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App.", "case_ids": [ 8954427 ], "year": 2003, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0135-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "151" }, { "page": "151", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "689-90" }, { "page": "689-90" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "423 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "447-48" } ], "opinion_index": 0 }, { "cite": "333 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546568 ], "year": 1992, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-314", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(1)" }, { "page": "(2)(c)" } ], "opinion_index": 0 }, { "cite": "272 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "359-60", "parenthetical": "internal quotation marks omitted" }, { "page": "360" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523168 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "644", "parenthetical": "internal quotation marks omitted" }, { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0642-01" ] }, { "cite": "279 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "101" }, { "page": "101" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170356 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "462" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0454-01" ] } ], "analysis": { "cardinality": 688, "char_count": 14245, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14846406103212967 }, "sha256": "e6d5ee88c756bbc486840938006f7a5d33f507bebe26625ef00500015db85b65", "simhash": "1:1160e036a63f715a", "word_count": 2269 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and BEASLEY concur." ], "parties": [ "MICHAEL RAY WILLIAMS, Plaintiff v. O\u2019CHARLEY\u2019S, INC., Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiff presented sufficient circumstantial evidence of a defect in the food to warrant the submission of an issue of breach of an implied warranty of merchantability to the jury. Plaintiff presented sufficient evidence of proximate cause and medical causation. The trial court did not err in denying defendant\u2019s motion for judgment notwithstanding the verdict.\nI. Factual and Procedural History\nMichael Williams (plaintiff) ate dinner at an O\u2019Charley\u2019s restaurant (defendant) in Concord on 18 March 2008. At about 8:15 p.m., plaintiff ordered grilled chicken, rice, and a baked potato. The food arrived about 45 minutes later. The chicken had a bad aftertaste, stuck to the plate, and was dry. No other member of plaintiff\u2019s dining party ate chicken. By 8 a.m. the next morning, plaintiff was suffering from severe diarrhea and vomiting. Plaintiff did not eat any other food on 18 March 2008. He was admitted to Rowan Regional Medical Center on 21 March 2008. Plaintiff was hospitalized for seven days under the treatment of Dr. Christopher Mclltrot.\nPlaintiff brought this action seeking monetary damages for negligence and breach of an implied warranty of merchantability on 22 July 2009. A jury returned a verdict in favor of defendant on the negligence claim, but in favor of plaintiff on the claim for breach of an implied warranty of merchantability, and awarded $140,000 in damages for personal injuries. On 3 January 2011, the trial court entered judgment based upon the jury verdict. Defendant filed a motion for judgment notwithstanding the verdict on 13 January 2011. This motion was denied on 9 June 2011.\nDefendant appeals.\nII. Motion for Judgment Notwithstanding the Verdict\nDefendant contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. We disagree.\nA. Standard of Review\n\u201cA motion for judgment notwithstanding the verdict presents the question of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it.\u201d Morrison v. Kiwanis Club, 52 N.C. App. 454, 462, 279 S.E.2d 96, 101 (1981). \u201cThe question of sufficiency of the evidence to send a case to the jury is a question of law. The question presented to the appellate court in reviewing the decision of the trial court is the identical question which was presented to the trial court by defendant\u2019s motion[.]\u201d Hunt v. Montgomery Ward and Co., 49 N.C. App. 642, 644, 272 S.E.2d 357, 359-60 (1980) (internal quotation marks omitted).\nThe question is \u201cwhether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury.\u201d Hunt, 49 N.C. App. at 644, 272 S.E.2d at 360. The plaintiff \u201cis entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence,\u201d and all conflicts in the evidence are resolved in favor of the plaintiff. Morrison, 52 N.C. App. at 462, 279 S.E.2d at 101.\nB. Analysis\n\u201c[A] warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.\u201d N.C. Gen. Stat. \u00a7 25-2-314(1) (2011). To be merchantable, goods must be \u201cfit for the ordinary purposes for which such goods are used[.]\u201d N.C. Gen. Stat. \u00a7 25-2-314(2)(c) (2011).\nTo prove a breach of implied warranty of merchantability, a plaintiff must show (1) that the goods in question were subject to an implied warranty of merchantability; (2) that the goods were defective at the time of the sale and as such did not comply with the warranty; (3) that the resulting injury was due to the defective nature of the goods; and (4) that damages were suffered. Goodman v. Wenco Foods, Inc., 333 N.C. 1, 10, 423 S.E.2d 444, 447-48 (1992).\ni. Defect\nDefendant contends that plaintiff failed to present adequate evidence of the existence of a defect in the chicken.\nA plaintiff need not prove a specific defect to carry his or her burden of proof in a products liability action based upon a breach of implied warranty of merchantability. DeWitt v. Eveready Battery Co., 355 N.C. 672, 689-90, 565 S.E.2d 140, 151 (2002). In considering a motion for judgment notwithstanding the verdict, the evidence is adequate to submit the case to the jury where \u201cthe plaintiff produces adequate circumstantial evidence of a defect.\u201d Red Hill Hosiery Mill, Inc. v. MagneTek, Inc., 159 N.C. App. 135, 139, 582 S.E.2d 632, 635 (2003).\nThis evidence may include such factors as: (1) the malfunction of the product; (2) expert testimony as to a possible cause or causes; (3) how soon the malfunction occurred after the plaintiff first obtained the product and other relevant history of the product, such as its age and prior usage by plaintiff and others, including evidence of misuse, abuse, or similar relevant treatment before it reached the defendant; (4) similar incidents, when[] accompanied by proof of substantially similar circumstances and reasonable proximity in time; (5) elimination of other possible causes of the accident; and (6) proof tending to establish that such an accident would not occur absent a manufacturing defect.\nDeWitt, 355 N.C. at 689-90, 565 S.E.2d at 151 (internal quotation marks and citations omitted) (alteration in original).\nBecause of the dearth of North Carolina cases concerning food poisoning and the implied warranty of merchantability, we examine precedent from other jurisdictions. See generally Jane Massey Draper, Annotation, Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R. 5th 1 (1992).\nIn Sneed v. Beaverson, 395 P.2d 414, 415 (Okla. 1964), the plaintiff testified that she ate a steak at the defendant\u2019s grill, became ill, and was in the hospital for two days. Her doctor testified that \u201cassuming the correctness of the [plaintiff\u2019s] history,\u201d it was his opinion, with reasonable certainty, that her injury came from the meat she ate. Id. The Supreme Court of Oklahoma held that this evidence was sufficient to survive a demurrer. Sneed, 395 P.2d at 416.\nIn Snead v. Waite, 208 S.W.2d 749, 750 (Ky. 1948), the plaintiff purchased barbecued mutton from the defendant and ate it with bread. By the next day, the plaintiff and his family were violently ill, suffering from nausea, vomiting, cramping, and diarrhea. Id. The Court of Appeals of Kentucky held that the evidence \u201camply proved all of the elements of an implied warranty[.]\u201d Snead, 208 S.W.2d at 751.\nIn Johnson v. Kanavos, 6 N.E.2d 434, 435 (Mass. 1937), the plaintiffs noticed a peculiar taste in the frankfurter sandwiches they purchased from the defendant. All of the plaintiffs became sick within four hours. Id. Physicians who treated the plaintiffs did not testify that, in their opinion, the sandwiches caused the illnesses. Johnson, 6 N.E.2d at 436. The Supreme Judicial Court of Massachusetts held that the evidence was adequate to support a finding in favor of the plaintiffs. Id. \u201cEvidence of the presence of a peculiar taste in food has some probative significance on the issue whether the food was unwholesome and the cause of a subsequent illness of a person eating it[.]\u201d Johnson, 6 N.E.2d at 435.\nIn Barringer v. Ocean S.S. Co., 134 N.E. 265, 266 (Mass. 1922), the plaintiff alleged that food served on the defendant\u2019s vessel caused the plaintiff to suffer vomiting and cramps. The plaintiff ate some cold meat that did not \u201ctaste very good\u201d to him. Barringer, 134 N.E. at 265-66. The Supreme Judicial Court of Massachusetts held that the evidence \u201cwas very meager; but the credibility of the witnesses was for the trial judge, and if he believed them he could find that the plaintiff\u2019s case was proved.\u201d Barringer, 134 N.E. at 266.\nWe hold the legal reasoning of these cases to be persuasive.\nIn the instant case, plaintiff testified that the chicken had a bad aftertaste, stuck to the plate, and was dry as though it had been under a heat lamp. Plaintiff got sick within several hours after eating the chicken. Plaintiff did not eat any other food on 18 March 2008. Dr. Mclltrot testified that the chicken was likely the cause of his symptoms. Dr. McIItrot testified that he eliminated other possible causes of the injury by performing medical tests and procedures, including a laparoscopy.\nPlaintiff suffered from no pre-existing conditions that would account for these symptoms. Plaintiff ate the chicken at approximately 9:00 p.m. on 18 March 2008, and ate nothing else that night. Plaintiff began suffering from severe vomiting and diarrhea at 8:00 a.m. the next day. Taking all of the evidence in the light most favorable to the plaintiff, sufficient circumstantial evidence was presented of a defect in the chicken to warrant submission of the case to the jury.\nii. Proximate Cause\nDefendant next contends that plaintiff failed to provide adequate evidence that a defect was the proximate cause of plaintiff\u2019s injury.\n\u201cIssues of proximate cause and foreseeability, involving applications of standards of conduct, are ordinarily best left for resolution by a jury under appropriate instructions from the court.\u201d Hastings v. Seegars Fence Co., 128 N.C. App. 166, 170, 493 S.E.2d 782, 785 (1997).\nIn the instant case, the trial court instructed the jury on proximate cause, and defendant does not challenge these instructions. Further, plaintiff had not eaten anything else that day, other than his meal at defendant\u2019s establishment. Plaintiff\u2019s daughter did not eat any chicken, and she did not become ill. Plaintiff did not eat anything after he went home after his meal. Plaintiff began suffering severe vomiting and diarrhea. Plaintiff had never experienced symptoms of vomiting and diarrhea like he experienced after his meal on 18 March 2008. Plaintiff\u2019s daughter drove him to the hospital, where he remained for a week.\nDr. McIItrot, plaintiff\u2019s treating physician, testified that plaintiff\u2019s condition could have been caused by food poisoning. Dr. McIItrot testified that, based on his \u201cunderstanding to a reasonable degree of medical certainty[,]\u201d it was more likely than not that defendant\u2019s food caused plaintiff\u2019s injuries. Dr. McIItrot formed this opinion after observing plaintiff, conducting tests and procedures, and ruling out other anatomic, physical, and medical causes.\nThe trial court did not err in denying defendant\u2019s motion for judgment notwithstanding the verdict on the basis of lack of evidence of proximate cause.\niii. Competent Medical Causation Evidence\nDefendant contends that plaintiff failed to provide \u201ccompetent medical causation evidence[.]\u201d\n\u201cIn cases involving complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003) (internal quotation marks omitted). \u201cHowever, when such expert opinion testimony is based merely upon speculation and conjecture, ... it is not sufficiently reliable to qualify as competent evidence on issues of medical causation.\u201d Id.\nIn Holley, the Supreme Court held that the evidence was insufficient to support the Industrial Commission\u2019s findings of fact where the doctor\u2019s opinion was based entirely on speculation. Holley, 357 N.C. at 234, 581 S.E.2d at 754. The doctor\u2019s testimony included the statements that the blood clots could have developed prior to the workplace accident, and \u201c[i]t\u2019s just a galaxy of possibilities.\u201d Holley, 357 N.C. at 233, 581 S.E.2d at 753.\nIn Young v. Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916-17 (2000), the Supreme Court held that the evidence was insufficient to support the Industrial Commission\u2019s findings of fact where the doctor\u2019s opinion was based entirely on speculation, and the doctor\u2019s testimony constituted the sole evidence of causation. The doctor\u2019s testimony included the statements: \u201cI must say that a lot of times I have no idea why someone has fibromyalgia. Far and away, fibromyalgia occurs more commonly for unknown reasons.\u201d Young, 353 N.C. at 231, 538 S.E.2d at 915.\nDr. Mclltrot testified that plaintiff\u2019s condition could have been caused by food poisoning. Dr. Mclltrot testified that, based on his \u201cunderstanding to a reasonable degree of medical certainty[,]\u201d it was more likely than not that defendant\u2019s food was the cause of plaintiff\u2019s injuries. Dr. Mclltrot formed this opinion after observing plaintiff, conducting tests and procedures, and ruling out other anatomic, physical, and medical causes. The trial court did not err in denying defendant\u2019s motion for judgment notwithstanding the verdict based upon the competency of plaintiff\u2019s medical causation evidence.\nFor the reasons stated above, we hold that the trial court did not err in denying defendant\u2019s motion for judgment notwithstanding the verdict.\nAFFIRMED.\nJudges CALABRIA and BEASLEY concur.\n. Before 1976, the Court of Appeals was Kentucky\u2019s highest court.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Doran, Shelby, Pethel and Hudson, P.A. by Kathryn C. Setzerfor plaintiff-appellee.", "Teague Campbell Dennis & Gorham, LLP by Christopher G. Lewis for defendant-appellant." ], "corrections": "", "head_matter": "MICHAEL RAY WILLIAMS, Plaintiff v. O\u2019CHARLEY\u2019S, INC., Defendant\nNo. COA11-1467\n(Filed 19 June 2012)\n1. Warranties \u2014 breach of implied warranty of merchantability \u2014circumstantial evidence of food poisoning\nThe trial court did not err in a negligence case by concluding that plaintiff presented sufficient circumstantial evidence of a defect in the food to warrant the submission of the issue of breach of an implied warranty of merchantability to the jury.\n2. Negligence \u2014 motion for judgment notwithstanding verdict\u2014 proximate cause\nThe trial court did not err in a negligence case by denying defendant\u2019s motion for judgment notwithstanding the verdict. Plaintiff presented sufficient evidence of proximate cause.\n3. Negligence \u2014 motion for judgment notwithstanding verdict\u2014 medical causation\nThe trial court did not err in a negligence case by denying defendants motion for judgment notwithstanding the verdict. Plaintiff presented competent medical causation evidence.\nAppeal by defendant from judgment entered 3 January 2011 by Judge Shannon R. Joseph in Rowan County Superior Court. Heard in the Court of Appeals 2 April 2012.\nDoran, Shelby, Pethel and Hudson, P.A. by Kathryn C. Setzerfor plaintiff-appellee.\nTeague Campbell Dennis & Gorham, LLP by Christopher G. Lewis for defendant-appellant." }, "file_name": "0390-01", "first_page_order": 400, "last_page_order": 407 }