United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT  AND FINDING AS MOOT PLAINTIFFS'
SECOND MOTION TO COMPEL 
HONORABLE STEPHEN J. MURPHY, III JUDGE.
Careea and Cecil Nordé (collectively
"Nordés") filed suit against Defendant P.F.
Chang's Bistro, Inc. in Wayne County Circuit Court and
alleged negligence, violation of the Michigan consumer
protection act, breach of implied warranty, and loss of
consortium. ECF 1, PgID 18-21. After discovery closed,
Defendant filed the pending motion for summary judgment. ECF
23. Plaintiffs responded and filed a second motion to compel
discovery. ECF 27. The Court has reviewed the briefs; a
hearing is unnecessary. E.D. Mich. LR 7.1(f).
reasons set forth below, the Court will grant Defendant's
motion for summary judgment. Plaintiffs' second motion to
compel is therefore moot.
2, 2015, the Nordés dined at P.F. Chang's in
Dearborn, Michigan. They received a regular menu and a
special "Chang's for Two" menu. ECF 24-2, PgID
270; ECF 23-2, PgID 183. The Nordés "glanced at
the regular menu and decided it would be more economical to
order from the special menu." ECF 24-2, PgID 270. The
regular menu listed the ingredients in each dish and stated
"[b]efore placing your order, please inform your server
if a person in your party has a food allergy." ECF 23-4,
PgID 191-92. The "Chang's for Two" menu neither
listed ingredients nor provided an allergen warning. ECF
24-3, PgID 317. Careea has a severe shellfish allergy. ECF
24-2, PgID 276.
ordered wonton soup from the "Chang's for Two"
menu. The regular menu itemizes wonton soup's
ingredients: "[s]avory broth with . . . shrimp[.]"
ECF 23-4, PgID 191. Careea ate a wonton from the soup, but
before taking another bite her husband, Cecil, intervened
because a shrimp was on her spoon. ECF 24-2, PgID 272-73.
Careea could not see the shrimp in the soup because of the
wontons. Id. at 312. Cecil called the waitress to
the table. The waitress explained that P.F. Chang's made
its wonton soup with shrimp and that she wished she had known
of Careea's allergy because the restaurant has "a
special menu for people with allergies." Id. at
immediately took two Benadryl and rushed to the hospital with
trouble breathing. Id. at 273-75. After arriving at
the hospital, Careea told the hospital staff that she had
"a severe shellfish allergy and accidentally ate a
wonton that was cooked with shrimp." Id. at
276. Shortly thereafter Careea lost consciousness and
hospital personnel placed her in a medically induced coma for
several days. Id. at 263-64. Prior to the P.F.
Chang's incident, Careea had suffered only two previous
allergic reactions. Id. at 243-44.
suffered significant injury from her hospitalization
including: a "[p]ermanent raspy and hoarse voice, "
surgeries, "[c]onstant ear infections, " physical
and emotional pain and suffering, medical costs, lost wages
and earning capacity, among others. ECF 1, PgID 17-18.
judgment is warranted "if the movant shows there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). A fact is "material" for purposes of summary
judgment if proof of that fact would establish or refute an
essential element of the cause of action or defense.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984). A dispute over material facts is “genuine”
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
order to show that a fact is, or is not, genuinely disputed,
both parties are required to either "cite to
particular parts of materials in the record" or
"show that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact." Fed.R.Civ.P. 56(c)(1). In considering a motion
for summary judgment, the Court must view the facts and draw
all reasonable inferences in a light most favorable to the
nonmoving party. 60 Ivy St. Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987).
allege three state law claims. The Court applies Michigan law
because when "federal jurisdiction is based on diversity
. . . the substantive law of the forum state" governs.
Conlin v. Mortg. Elec. Registration Sys., Inc., 714
F.3d 355, 358 (6th Cir. 2013).
establish a prima facie case of negligence, the plaintiff
must prove four elements: "(1) a duty owed by the
defendant to the plaintiff, (2) a breach of that duty, (3)
causation, and (4) damages." Case v. Consumers Power
Co., 463 Mich. 1, 6 (2000). "The threshold question
in a negligence action is whether the defendant owed a duty
to the plaintiff." Fultz v. Union-Commerce
Assocs., 470 Mich. 460, 463 (2004). Duty is "the
legal obligation to conform to a specific standard of
conduct[.]" Lelito v. Monroe, 273 Mich.App.
416, 419 (2006). "[W]hether a duty exists is determined
by the court as a matter of law." Id. at
419.Statutes or the common law-"which
imposes on every person engaged in the prosecution of any
undertaking an obligation to use due care"-may establish
a duty of care. Cipri v. Bellingham Frozen Foods,
Inc., 235 Mich.App. 1, 15 (1999) (quotation omitted). If
the decisions of a state's highest court do ...