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Fourth District Court of Appeal reverses trial court's summary judgment in favor of defendant in personal injury case involving restaurant patron's ingestion of broken mussel shell

On February 1, 2017, in Dellatore v. Buca, Inc., No. 4D16-65. the 4th DCA reversed a trial court's summary judgment order in favor of the defendant in a case involving a restaurant patron's ingestion of a 1-2 inch long broken mussel shell which had to be surgically removed. Despite the fact that the plaintiff testified that he had not broken the mussel shell, an allegation that was corroborated by a fellow diner, the trial court concluded that there was no genuine issue as to any material fact which would support a verdict in favor of the plaintiff. In reversing this ruling, the 4th DCA cited prior case law holding that when a record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. The court additionally noted that a "reasonable expectation" test applies to determine whether a restaurant is negligent when it serves a patron a "harmful substance," the inquiry focusing on whether the customer should have reasonably expected that a natural ingredient (the broken mussel shell) might be submerged in the customer's pasta. The Court concluded that what was reasonably expected by the customer was a jury question in this case, as in most such cases, and therefore not subject to summary judgment.