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Norde' v. P.F. Chang's China Bistro, Inc.

United States District Court, E.D. Michigan, Southern Division

October 31, 2017

CAREEA NORDE' and CECIL NORDE', Plaintiffs,
v.
P.F. CHANG'S CHINA BISTRO, INC., Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [23] AND FINDING AS MOOT PLAINTIFFS' SECOND MOTION TO COMPEL [27]

          HONORABLE STEPHEN J. MURPHY, III JUDGE.

         Plaintiffs 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).

         For the reasons set forth below, the Court will grant Defendant's motion for summary judgment. Plaintiffs' second motion to compel is therefore moot.

         BACKGROUND[1]

         On July 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.[2] Careea has a severe shellfish allergy. ECF 24-2, PgID 276.

         Careea 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 275.

         Careea 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.

         Careea 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.

         STANDARD OF REVIEW

         Summary 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).

         DISCUSSION

         Plaintiffs 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).

         I. Negligence Claim

         To 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.[3]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 ...


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