In Brumberg v. Cipriani USA, the Appellate Division, Third Department reversed a summary judgment for defendants. In this personal injury case, plaintiff (a Cornell University professor) sued after allegedly consuming a 1.5 inch shard of wood at a Cornell University fundraiser catered by Cipriani.
Initially, the court found that plaintiff presented sufficient evidence that she consumed the shard at the event:
Plaintiff, together with other Cornell University professors, took an early morning bus from the City of Ithaca, Tompkins County to New York City. She reportedly ate yogurt and granola on the bus and vegetarian pasta in the early afternoon (by about 1:00 p.m.). She experienced no abdominal pain throughout the afternoon and consumed no other food until about five hours later at the fundraising event, where she had assorted hor d’oeuvres from about 5:45 p.m. to 6:15 p.m. The sharp pain started at approximately 6:45 p.m. and she recalled that it was located above her navel but below her chest. She sought medical attention that evening, again the following day and numerous times throughout the ensuing two weeks — including an ultrasound, an X ray and a CAT scan — as her problem continued until the shard was found during an endoscopy. Significantly, her personal physician, who was involved in her treatment, opined to a reasonable degree of medical certainty that the onset of plaintiff’s acute pain occurred as a result of ingesting the wood shard at the time of the fundraising event.
This case was different than cases, such as Krall v. Shaker Ridge Country Club, in which a foreign object in food is discovered immediately (and which typically involve injury in the mouth, throat or upper esophagus). In contrast, “here, the approximately 30-minute delay in the onset of pain is explained by the fact (and supported by expert evidence) that the item had moved further through plaintiff’s digestive system before becoming caught and causing pain.” The facts, together with plaintiff’s expert’s opinion, were sufficient to raise a fact question as to whether the shard was ingested at the event.
Next, the court held that there was sufficient evidence of defendants’ negligence. The fact that the ingested wood shard was not made of the same type of wood as skewers or toothpicks used by Cirpiani in serving food at the event was not dispositive:
While a finding that the two samples were from the same wood product would have been some direct evidence supporting plaintiffs’ case, the absence of such a finding is not necessarily fatal to plaintiffs’ case. Instead, it becomes similar to cases where an object unrelated to the food (such as glass or a tack) is found.
Without direct evidence of negligence, plaintiffs relied on the doctrine of “res ipsa loquitur”, which “is neither a theory of liability nor a presumption of liability, but instead is simply a permitted inference — that the trier of fact may accept or reject — reflecting a common-sense application of the probative value of circumstantial evidence.”
For res ipsa loquitur to apply, the following elements must be present:
(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.
To establish element two, exclusive control, plaintiffs are “not obligated to eliminate every alternative explanation for the event, but only to demonstrate that the likelihood of causes other than the defendant[s’] negligence is so reduced that the greater probability lies at defendant[s’] door, rendering it more likely than not that the injury was caused by defendant[s’] negligence”.
The court held that there was sufficient evidence to “find ample control by defendants for purposes of res ipsa loquitur.” Specifically:
[T]he event occurred at a banquet hall operated by Cipriani. Cipriani prepared and provided all of the food. Attendees were not permitted to bring food onto the premises. Individuals undisputedly under Cipriani’s control (pursuant to a contractual arrangement) acted as captains, servers and bartenders. Cipriani thus exclusively prepared, provided and served the food. Although the shard possibly could have been present when the ingredients for food were purchased from suppliers, it was not so small as to have been likely concealed and thus not visible upon careful preparation (cf. Restatement [Second] of Torts § 328D, Comment e, Illustration 2). Defendants point to the fact that other attendees had access to the hor d’oeuvres as reflecting a lack of exclusive control. Plaintiffs presented proof that plaintiff started eating 15 minutes before most guests arrived (the program officially started at 6:00 p.m.) so as to be free to converse with as many attendees as possible. Also, Cipriani’s personnel were present in the room serving the food both butler style and at stations, thus reducing the likelihood of some third party placing the shard unseen in food.
The court therefore reversed summary judgment for defendants, and allowed the action to proceed.