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Res Ipsa Loquitur Not Apply for Negligence Claim Due to Injury from Eating Dessert from Fast Food Restaurant

By on September 2, 2016 in Negligence, Uncategorized with 0 Comments

Plaintiff Erik Lukmann claims to have been injured while biting down on an ice cream dessert purchased from Wendy’s. He bit down, felt a hard object, and spit out a coin. As a result, he broke several veneers on his teeth. In Lukmann v. Wenesco Restaurant Systems, Inc., 2016 N.J. Super. Unpub. LEXIS 1089 (App. Div. May 12, 2016), he sued Wendy’s based upon negligence and requested at the trial that the doctrine of res ipsa loquitur be charged to the jury.

Plaintiff had gone to the mall and bought lunch, including dessert, at Wendy’s. The dessert was served in a cup with a plastic dome with an opening for a utensil. Apparently, Plaintiff put his dessert in the bag with the salad he bought from Wendy’s. He paid for his meal in cash and put the coins in the bag with the salad and the dessert. After picking up his food, he then went to the movies. He ate his salad first.

Later, towards the end of the movie, Plaintiff ate his dessert. When he bit down, he felt an object hit his front tooth. He spit out the object and saw a silver coin. Upon inspection of the cup, he found 4 coins.

The case was tried before a jury. The Plaintiff requested that the jury charge include a res ipsa loquitur charge. If this doctrine had been charged, it would have allowed for an inference of defendant’s lack of due care without the plaintiff having to prove all of the elements of negligence. If this charge is given, it makes it much easier for the plaintiff to prove negligence. It essentially shifts the burden to the defendant to prove that there was no lack of due care that caused the accident. The judge denied the request, finding that this rule did not apply because it had not been shown “that the instrumentality causing the injury was within the control of the defendant at the time of mishap.”

After deliberating, the jury found no cause for action and the case was dismissed. The Plaintiff appealed the trial judge’s refusal to charge res ipsa loquitur. Upon appeal, the Appellate Division agreed with the trial court’s decision in refusing to give this charge to the jury.

To permit a charge of this doctrine, a plaintiff must be able to show that 3 conditions have been met: “(1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality was within the defendant’s control; and (3) there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.”

Here, the trial judge found that the dessert was not in the exclusive control of the defendant. The plaintiff had possession of the dessert for at least an hour or two hours after it was purchased and left the control of the defendant. And, the evidence showed that the plaintiff picked up the change and put it in the bag with the ice cream. Hence, the plaintiff was unable to rule out that the coins ended up in his dessert because he placed the coins in the bag versus Wendy’s giving him the dessert with coins inside the cup. Thus, the Appellate Division agreed that the plaintiff had not met the conditions sufficient to merit a res ipsa loquitur charge.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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