REGINA SMITH ET AL.
BENIHANA NATIONAL CORP.
Session: June 18, 2019
from the Circuit Court for Shelby County No. CT-001573-14
Gina C. Higgins, Judge
2010, Decedent became ill while dining at the Benihana
restaurant in Memphis, Tennessee; despite being transported
to the hospital, Decedent quickly died. Surviving relatives
of Decedent thereafter filed suit against the restaurant
alleging, inter alia, that the restaurant negligently served
Decedent seafood or shellfish in spite of a known allergy.
After several years of pretrial disputes, the case eventually
proceeded to a jury trial. The jury determined that the
restaurant was not liable for the death of Decedent and
awarded the plaintiffs no damages. The plaintiffs filed no
post-trial motions, but filed a timely notice of appeal to
this Court. Discerning no error in the jury's verdict and
concluding that several of the issues raised on appeal are
waived, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Terrell Lee Tooten, Memphis, Tennessee, for the appellants,
Regina Smith, and Lekeitha Moore.
L. Holloway, Molly A. Glover, and William David Irvine, Jr.,
Memphis, Tennessee, for the appellee, Benihana National Corp.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Thomas R. Frierson, II, and Carma Dennis
McGee, JJ., joined.
STEVEN STAFFORD, JUDGE
outset we note that the factual and procedural history of the
present case can only be described as tortuous. This matter
arose after the death of Elliott Smith ("Decedent")
on or about December 4, 2010, after Decedent dined at the
Benihanarestaurant located in Memphis, Tennessee.
As a result, Regina Smith and Lekeitha Moore,  on behalf of
Decedent's minor children (collectively,
"Appellants") filed suit against Benihana of Tokyo,
Inc. on November 14, 2011. The basis of this suit was that
Decedent suffered from an allergy to all seafood and
allegedly passed away as a result of ingesting seafood or
seafood particles while dining at the Memphis Benihana on the
evening in question. The initial case was voluntarily
dismissed and timely refiled in April of 2014 in the Shelby
County Circuit Court ("trial court"). In the
refiled complaint, Appellants alleged causes of action for
negligence, gross negligence, loss of consortium, premises
liability, res ipsa loquitur, intentional infliction of
emotional distress, and negligent infliction of emotional
distress. Essentially, this complaint averred that Benihana
of Tokyo was responsible for Decedent's death by failing
to properly prepare Decedent's meal without seafood in
it, and by failing to protect Decedent "against
ingestion and/or exposure to allergens" that were
present in the restaurant and harmful to Decedent. Benihana
of Tokyo moved to dismiss the complaint, arguing that it did
not operate or control the Memphis Benihana.
thereafter filed an amended complaint on July 21, 2014,
naming Benihana, Inc. and Benihana National Corp.
("Appellee") as defendants. The amended complaint
asserted largely the same allegations regarding the death of
Decedent. The Appellee moved to dismiss the amended complaint
alleging that service of process was not appropriately
carried out. In the meantime, Appellants filed a motion for
partial summary judgment on December 7, 2016, wherein they
asserted that Appellee caused Decedent's death "by
failing to ensure that his meal was not contaminated with
seafood" and by failing to ensure that Decedent
"was not exposed to a dangerous amount of smoke which
contained seafood elements." Appellants essentially
urged that Appellee was negligent in either allowing seafood
to contaminate Decedent's meal, or by failing to protect
Decedent from inhaling aerosolized seafood particles while
dining. Appellants attached to this motion the
affidavit of Dr. Donald Accetta, who opined that Decedent had
died from a massive, deadly "reaction called anaphylaxis
due to contamination of the food that he was eating at the
Benihana restaurant." Eventually, the trial court held a
hearing on the various pending motions and concluded that the
amended complaint should be dismissed with
prejudice. An order was entered April 4, 2017,
dismissing Appellants' claims entirely.
Appellants filed a motion to alter or amend the April 4, 2017
order dismissing their complaint, arguing that counsel for
Appellants had not been made aware that the motion to dismiss
was set for hearing the day it was heard. Further, they
alleged that the trial court failed to appropriately state
the basis for the dismissal or otherwise specify the facts
and law relied upon in deciding to dismiss the case.
September 1, 2017, the trial court entered several orders.
First, the trial court set aside its April 4, 2017 order
dismissing the case with prejudice; the trial court based
this decision on "the need to review all available
material information, facts, and for the Court to consider
the arguments of counsel in relation to the interpretation of
the facts in this case." After setting the previous
order aside, the trial court reconsidered Appellee's
motion to dismiss, and determined that certain claims should
indeed be dismissed. Specifically, the trial court dismissed
the loss of consortium claims of Regina Smith and Lekeitha
Moore,  as well as the causes of action based upon
premises liability and res ipsa loquitur. The trial court
concluded that the action would thus "proceed solely
under the Wrongful Death statute." Accordingly,
Appellee's motion to dismiss was denied in part and
granted in part, and the case proceeded. Trial was set for
May 21, 2018.
time, Appellants' motion for partial summary judgment
remained pending. Appellee responded to this motion by
asserting that disputed issues of material fact remained
surrounding the cause of Decedent's death. In support,
Appellee produced Decedent's death certificate that
indicated that Decedent died from severe bronchial asthma,
rather than from an allergic reaction to seafood or seafood
particles. However, Appellee later filed its own motion for
summary judgment in April of 2018, wherein it sought
dismissal of all claims on the basis that no genuine issues
of material fact remained. Specifically, Appellee argued that
it could not be liable for negligently serving Decedent
seafood because Decedent was aware of the danger of seafood
exposure at Benihana, as Decedent undisputedly dined at
Benihana on a regular basis. With regard to Appellants'
argument that Decedent may have died from inhaling
aerosolized seafood particles while dining at Benihana,
Appellee asserted that it had no duty to protect Decedent
from "steam emanating off the grill at Benihana"
because injury from such steam would have been entirely
unforeseeable by the Appellee. Essentially, Appellee asserted
that Appellants could not satisfy their burden of proof as to
any of the claims at issue.
litigation continued, including various discovery disputes
between the parties. Finally, on May 4, 2018, the trial court
entered an order denying Appellants' motion for partial
summary judgment, noting that there were significant issues
of material fact outstanding and that "causation for the
death [of Decedent] was a huge issue in terms of whether the
cause of death was due to an allergy versus asthma." The
trial court eventually held a hearing on Appellee's
motion for summary judgment on May 11, 2018; however, the
trial court did not rule on the motion that day. Rather, the
trial court revisited Appellee's motion at another
hearing on May 18, 2018, at which time the trial court again
did not expressly rule on Appellee's motion for summary
judgment. The trial court did, however, state that "this
tortured case needs to just get to trial so we can get this
behind us. . . . Win lose or draw, you all need to let these
individuals in that box make determinations as to where this
case is going to go." As such, it appeared as if
Appellee's motion for summary judgment was denied, as the
trial court concluded that a trial on the merits would go
forward; however, no written order relating to the
Appellee's motion for summary judgment was ever entered.
The case proceeded to trial on May 21, 2018.
the fact that both parties filed numerous motions in limine
in an attempt to exclude one another's expert witnesses,
the trial court ultimately allowed both parties to present
testimony from their respective expert witnesses. After the
close of evidence, the trial court refused to instruct the
jury on, inter alia, punitive damages, gross
negligence, or Appellants' theory that the inhalation of
seafood particles caused Decedent's death. The jury
eventually returned a verdict in favor of Appellee, finding
that it was not liable for Decedent's death. Appellants
filed no post-trial motions; however, they filed a notice of
appeal to this Court on May 31, 2018.
raise several issues for review, which we have taken verbatim
from their appellate brief:
1. The trial court erred in denying [Appellants'] motion
for partial summary judgment.
2. The trial court erred in dismissing [Appellants']
claim for premises liability and negligence based upon the
theory of inhalation of seafood.
3. The trial court erred in dismissing [Appellants']
claims under the theories of gross negligence and product
liability based upon the theory of ingestion and inhalation
4. The trial court erred in granting [Appellee's] motion
for summary judgment.
5. The trial court erred in failing to exclude [Appellee]
witnesses Stephen Taylor, Dr. Marco Ross, and Dr. David
6. The trial court erred in denying [Appellants'] request
to instruct the jury on the claim of negligence due to
inhalation and in denying [sic] request for jury instruction
on punitive damages.
Appellee raises no additional issues for review.
Standard of Review
Regarding the review of a trial by jury, we have previously
explained that [w]ith the constitutional underpinning of the
right to a jury trial framing the appellate process,
Tennessee Rule of Appellate Procedure 13(d) narrowly limits
the role of appellate courts in reviewing the factual
findings of a jury. Duran v. Hyundai Motor Am.,
Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013). When
the factual foundation of a jury verdict is challenged on
appeal, it will only be set aside when there is no material
evidence to support it. Tenn. R. App. P. 13(d). Nevertheless,
we review the ...