Manley v. John Doe
7:10-cv-00154
E.D.N.C.Feb 2, 2012Background
- Manleys sued Wendy's and First Sun in state court, later removed to federal court on diversity grounds.
- John Manley purchased and consumed Wendy's food at a Wilmington restaurant in Feb–Mar 2007; a two-inch plastic fragment was later found in his lung in 2009.
- Plaintiffs allege breach of implied warranty of merchantability, negligence, and Karen Manley’s loss of consortium stemming from the fragment.
- Defendants moved for summary judgment; Manleys sought to amend the complaint earlier, but the court granted amendment and later granted summary judgment for defendants.
- The court analyzed NC law on implied warranty and negligence, applying DeWitt factors to determine whether the evidence supports a defect and causation, and held that no triable issue existed.
- The court ultimately granted summary judgment for defendants on all claims and dismissed the derivative loss of consortium claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Manley can prove breach of implied warranty of merchantability. | Manley argues circumstantial proof supports a defect at sale. | Manley failed to identify a specific defective item and cannot prove defect causation. | No genuine issue; summary judgment for defendants on warranty claim. |
| Whether Manley’s negligence claim can survive summary judgment. | Defendants failed to exercise proper care in food preparation; res ipsa loquitur applies. | Cannot prove defect via indirect evidence; res ipsa not applicable to ingestion cases. | No triable issue; summary judgment for defendants on negligence. |
| Whether Karen Manley’s loss of consortium is derivative and survives claims dismissal. | Loss of consortium follows from John’s injuries. | Derivative claim fails if underlying claims fail. | Derivative claim dismissed as there was no underlying liability. |
Key Cases Cited
- DeWitt v. Eveready Battery Co., Inc., 355 N.C. 672 (North Carolina Supreme Court 2002) (limits on circumstantial proof; requires a defect at sale; six-factor framework)
- Jones v. GMRI, Inc., 144 N.C. App. 558 (North Carolina Court of Appeals 2001) (res ipsa loquitur not available for ingestion of adulterated food)
- Goodman v. Wenco Foods, Inc., 333 N.C. 1 (North Carolina Supreme Court 1992) (breach of implied warranty requires proof of defect at sale; case involved a hamburger with a bone fragment)
- Carlton v. Goodyear Tire & Rubber Co., 413 F. Supp. 2d 583 (M.D.N.C. 2005) (illustrates stacking inference; careful evidence needed for defect proof)
- Time Warner Entm’t-Advance Newhouse P’ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304 (4th Cir. 2007) (court’s public policy consideration in a diversity case)