Norde' v. P.F. Chang's China Bistro, Inc.
2:16-cv-13595
E.D. Mich.Oct 31, 2017Background
- On July 2, 2015, Careea and Cecil Nordé dined at P.F. Chang's and received both a regular menu (listing ingredients and an allergy-warning) and a separate "Chang's for Two" special menu (which did not list ingredients).
- Careea, who has a severe shellfish allergy, ordered wonton soup from the special menu; the regular menu listed wonton soup as containing shrimp.
- After eating a wonton that had been cooked with shrimp, Careea had a severe allergic reaction, was hospitalized, and placed in a medically induced coma; she alleges long-term injuries and damages.
- Plaintiffs sued in state court asserting negligence, violation of the Michigan Consumer Protection Act (MCPA), breach of implied warranty, and loss of consortium; the case was removed and reached summary judgment after discovery.
- P.F. Chang's moved for summary judgment arguing it provided adequate notice via the regular menu and allergy-warning; Plaintiffs disputed whether they received or relied on the regular menu.
- The district court found no genuine dispute of material fact that Plaintiffs received and glanced at the regular menu, and granted summary judgment in favor of P.F. Chang's on all claims; Plaintiffs' discovery motion was rendered moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty/negligence: Did P.F. Chang's owe a duty to warn about shrimp in wonton soup under Michigan law/Restatement §402A? | Nordé contends a question of fact exists whether P.F. Chang's owed and breached a duty by failing to warn on the special menu. | P.F. Chang's argues it provided adequate warning on the regular menu and the general menu notice, so no duty-to-warn breach. | Court: No duty breach — warning on the regular menu and allergy notice was sufficient; negligence claim fails. |
| MCPA: Did P.F. Chang's engage in unfair, unconscionable, or deceptive practices under the MCPA? | Nordé asserts the lack of ingredient listing on the special menu misled consumers. | P.F. Chang's argues its conduct fits none of the MCPA's enumerated unfair/deceptive practices. | Court: Even if MCPA applies to restaurants, P.F. Chang's conduct did not meet statutory definitions; MCPA claim fails. |
| Implied warranty: Was there a breach of implied warranty of fitness for a particular purpose? | Nordé claims the restaurant should have known of her need for a non-allergenic meal. | P.F. Chang's contends it had no reason to know of Careea's allergy and the food was fit for ordinary consumption. | Court: No breach — P.F. Chang's lacked notice of Careea's particular purpose; implied-warranty claim fails. |
| Loss of consortium: Is Cecil Nordé entitled to recovery? | Cecil's claim is derivative of Careea's injury recovery. | P.F. Chang's maintains underlying claims fail, so derivative claim fails. | Court: Derivative claim fails because Careea's substantive claims failed. |
Key Cases Cited
- Kendall v. Hoover Co., 751 F.2d 171 (6th Cir.) (summary judgment material-fact standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct.) (genuine-dispute standard for summary judgment)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct.) (view evidence in nonmovant's favor on summary judgment)
- Case v. Consumers Power Co., 463 Mich. 1 (Mich.) (elements of negligence)
- Fultz v. Union-Commerce Assocs., 470 Mich. 460 (Mich.) (duty is threshold legal question)
- Lelito v. Monroe, 273 Mich. App. 416 (Mich. Ct. App.) (duty as legal obligation standard)
- Cipri v. Bellingham Frozen Foods, Inc., 235 Mich. App. 1 (Mich. Ct. App.) (sources establishing duty)
- Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355 (6th Cir.) (Erie-guess framework)
- Berryman v. KMart Corp., 193 Mich. App. 88 (Mich. Ct. App.) (loss-of-consortium derivative nature)
- Moss v. Pacquing, 183 Mich. App. 574 (Mich. Ct. App.) (derivative recovery for consortium)