221 N.C. App. 390
N.C. Ct. App.2012Background
- Plaintiff ate at O’Charley’s in Concord on 18 March 2008; chicken portion had bad aftertaste, stuck to plate, and was dry; symptoms began within hours after eating; plaintiff was hospitalized for seven days beginning 21 March 2008; plaintiff alleges negligence and breach of implied warranty of merchantability; jury awarded damages for the warranty claim and defendant moved for judgment notwithstanding the verdict (JNOV) which was denied; the trial court affirmed the verdict and defendant appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of defect to submit to the jury | Williams presented adequate circumstantial evidence of a defect | No defect proven | Yes; issue for jury |
| Whether proximate cause was proven by plaintiff | Defect more likely caused injury; expert supported causation | Insufficient causal link | Yes; proximate cause supported |
| Whether medical causation evidence was competent | Medical testimony based on reasonable certainty | Testimony speculative | Yes; competent medical causation evidence |
| Whether the standard for submission and verdict on implied warranty was met | Implied warranty breached; evidence supports jury verdict | Lack of proof of defect/causation | Yes; standard satisfied; JNOV denied |
| Whether the trial court properly denied JNOV on sufficiency of evidence | Evidence viewed in plaintiff-friendly light supports submission | Evidence insufficient | Affirmed; denial of JNOV upheld |
Key Cases Cited
- DeWitt v. Eveready Battery Co., 355 N.C. 672 (N.C. 2002) (recognizes circumstantial proof of defect suffices to submit to jury)
- Goodman v. Wenco Foods, Inc., 333 N.C. 1 (N.C. 1992) (elements of breach of implied warranty of merchantability)
- Holley v. ACTS, Inc., 357 N.C. 228 (N.C. 2003) (competent medical causation required; discounting speculative testimony)
- Young v. Hickory Bus. Furn., 353 N.C. 227 (N.C. 2000) (medical causation testimony must be more than speculation)
- Hunt v. Montgomery Ward and Co., 49 N.C. App. 642 (N.C. App. 1980) (standard for reviewing evidence to submit to jury)
- Morrison v. Kiwanis Club, 52 N.C. App. 454 (N.C. App. 1981) (scope of review for judgment notwithstanding the verdict)
- Barringer v. Ocean S.S. Co., 134 N.E. 265 (Mass. 1922) (food served on vessel deemed to require credible proof of illness)
- Johnson v. Kanavos, 6 N.E.2d 434 (Mass. 1937) (presence of peculiar taste supports unwholesomeness and illness)
- Snead v. Waite, 208 S.W.2d 749 (Ky. 1948) (implied warranty evidence by illness after eating)
- Sneed v. Beaverson, 395 P.2d 414 (Okla. 1964) (sufficient to survive demurrer based on likelihood of causation)
- Barringer v. Ocean S.S. Co., 134 N.E. 265 (Mass. 1922) (meat not tasting well can support causation)