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Smith v. Benihana National Corp.

Court of Appeals of Tennessee, Jackson

August 9, 2019


          Session: June 18, 2019

          Appeal from the Circuit Court for Shelby County No. CT-001573-14 Gina C. Higgins, Judge

         In 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Terrell Lee Tooten, Memphis, Tennessee, for the appellants, Regina Smith, and Lekeitha Moore.

          Lauren L. Holloway, Molly A. Glover, and William David Irvine, Jr., Memphis, Tennessee, for the appellee, Benihana National Corp.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Thomas R. Frierson, II, and Carma Dennis McGee, JJ., joined.




         At the 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 Benihana[1]restaurant located in Memphis, Tennessee. As a result, Regina Smith and Lekeitha Moore, [2] 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.

         Appellants thereafter filed an amended complaint on July 21, 2014, naming Benihana, Inc.[3] 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.[4] 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.[5] An order was entered April 4, 2017, dismissing Appellants' claims entirely.

         Thereafter, 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.

         On 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, [6] 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.

         At this 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.

         Protracted 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.

         Despite 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.

         Issues Presented

         Appellants 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 of seafood.
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 Amrol.
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.

         The 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 ...

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