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Kiessling v. Kiawah island Inn Company LLC

United States District Court, D. South Carolina, Charleston Division

January 25, 2019

ERNA KIESSLING and WILLIAM KIESSLING, Plaintiffs,
v.
KIAWAH ISLAND INN COMPANY LLC, d/b/a Kiawah Island Golf Resort, Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on defendant Kiawah Island Inn Company LLC's (“KIIC”) motion for summary judgment, ECF No. 40, and motion to exclude the testimony of plaintiffs' (“the Kiesslings”) proposed expert, ECF No. 41, and the Kiesslings' motion to amend the scheduling order, ECF No. 46. For the reasons set forth below, the court grants KIIC's motion for summary judgment as to the negligence claim, denies KIIC's motion for summary judgment as to the strict liability and breach of warranty claims, denies KIIC's motion to exclude the Kiesslings' proposed expert testimony, and finds the Kiesslings' motion to amend moot.

         I. BACKGROUND

         This case arises out of Mrs. Kiessling's contraction of a food-borne illness. The Kiesslings went on vacation with their adult daughter (“Mrs. Baker”) and her family (“the Bakers”) to Kiawah Island from June 7, 2015 to June 15, 2015. Both families brought their dogs on the trip. On their drive to Kiawah, the Bakers ate at Chick-fil-a. The Bakers and the Kiesslings ate most of their meals at their vacation house. On June 11, the Kiesslings and the Bakers went on a guided nature tour to Bull's Island. The tour included walking around the island and looking at wildlife. After the tour, they had dinner at Bessinger's Barbecue. At some point during the vacation, the Bakers ate again at Chick-fil-a, and the Kiesslings ate at McDonald's. On June 14, the family dined at the Jasmine Porch Restaurant, a restaurant located at the Kiawah Island Golf Resort and owned by KIIC. Mrs. Kiessling and Mrs. Baker ordered flounder, Mr. Kiessling ordered chicken, Mr. Baker and his daughter ordered tile fish, and the Bakers' son ordered steak. The family ate around 8:00 or 9:00 p.m.

         Around 2:00 a.m. on June 15, Mrs. Baker started to have diarrhea, the shakes, the chills, and a fever. She says she vomited and spent the night and early morning in the bathroom. Later that morning, around 8:00 a.m., the Kiesslings left Kiawah to return home. They took a rest stop in North Carolina around four or five hours later, and Mrs. Kiessling started to feel sick with a fever and pain in her right knee and left ankle. Mr. Baker and the Bakers' daughter also got sick on June 15 with mild diarrhea, but their symptoms were gone in about a day and a half.

         Both Mrs. Kiessling and Mrs. Baker went to emergency rooms in Wisconsin and South Carolina, respectively, and both had a bacteria called Campylobacter in their stool. Mrs. Kiessling's doctors also diagnosed her with reactive arthritis, which the Kiesslings contend is a side effect of the Campylobacter infection.

         On August 14, 2017, the Kiesslings filed suit, naming Kiawah Real Estate Company LLC and CCA Financial LLC as defendants. Then on March 7, 2018, the Kiesslings filed an amended complaint to change the defendant to be KIIC, and on June 1, 2018, the Kiesslings filed a second amended complaint to more clearly identify their claims. The claims in the second amended complaint are for negligence and recklessness, breach of warranty, and strict liability.

         On July 25, 2018, KIIC filed its motion for summary judgment, ECF No. 40, and motion to exclude the Kiesslings' proposed expert, ECF No. 41. The Kiesslings responded to both motions on August 31, 2018, ECF No. 45, and KIIC replied on September 6, 2018, ECF No. 48. The Kiesslings also filed a motion to amend the scheduling order on August 31, 2018. ECF No. 46. The court held a hearing on the motions on November 30, 2018. On December 21, 2018, the court entered the fourth amended scheduling order, making the Kiesslings' motion to amend moot. ECF No. 53. The motion for summary judgment and the motion to exclude are now ripe for review.

         II. STANDARD

         Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. Rule 56(c) requires summary judgment when the party who bears the burden of proof “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Anderson, 477 U.S. at 255.

         III. DISCUSSION

         A. Motion for Summary Judgment

         KIIC argues that the Kiesslings are unable to prove that the flounder served by KIIC caused Mrs. Kiessling's injuries-an element in each of their negligence, warranty, and strict liability claims-and that as a result, all claims must fail. The Kiesslings contend that their expert, Dr. William Robert Jarvis (“Jarvis”), will provide the causation evidence, and that the case will be a “battle of experts.” ECF No. 45 at 1.

         1. Negligence Claim

         The Kiesslings' first claim against KIIC is for negligence. Under South Carolina law, the elements of negligence include: “(1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty.” Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254, 263 (4th Cir. 1998) (citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 715, 720 (S.C. 1996)). Importantly, South Carolina law does not recognize the doctrine of res ipsa loquitur, meaning a plaintiff asserting negligence must prove that the defendant caused her injury. Crider v. Infinger Transp. Co., 148 S.E.2d 732, 734-35 (S.C. 1966). In addition, the Kiesslings allege that KIIC was negligent in part by violating S.C. Code Ann. § 39-25-30, which prohibits the sale of adulterated food. While the violation of a statute can constitute negligence per se, the violation can only support recovery if it proximately caused the plaintiff's injury. Coward v. Borden Foods, Inc., 229 S.E.2d 262, 263 (S.C. 1976).

         Here, even assuming Jarvis's opinion is admitted, the Kiesslings cannot prove their negligence claim as a matter of law. Jarvis opines that the Campylobacter came from the flounder, but there is no evidence that KIIC caused the Campylobacter to infect the flounder with Campylobacter, causing Mrs. Kiessling's injury. As KIIC explained in its motion for summary judgment and the Kiesslings conceded at the hearing, there is no evidence that KIIC's preparation of the flounder that was served to Mrs. Kiessling caused her injuries. Because South Carolina does not recognize res ipsa loquitur, this absence of evidence is fatal to the Kiesslings' negligence claim. Moreover, even when the Kiesslings plead their negligence claim as negligence per se through a violation of S.C. Code Ann. § 39-25-30, they still must prove causation, which they cannot do. Therefore, the court grants KIIC's motion for summary judgment as to the Kiesslings' negligence claim.

         2. Strict Liability Claim

         The Kiesslings also levy a statutory strict liability claim against KIIC. Pursuant to S.C. Code Ann. § 15-73-10, the seller of a product is liable for the harm caused by the product when (1) the product is “in a defective condition unreasonably dangerous to the user”; (2) “[t]he seller is engaged in the business of selling such a product”; and (3) the product reaches the user in the substantially same condition in which it was sold. Here, unlike the negligence claim, the Kiesslings do not need to prove that KIIC caused the flounder to be contaminated with Campylobacter. However, they do still need to prove that the product sold by KIIC, namely, the flounder, was unreasonably dangerous and that it was the cause of Mrs. Kiessling's injury. This is what Jarvis's testimony seeks to establish; therefore, this claim can only survive summary judgment if Jarvis's testimony is admissible.

         3. Breach of Warranty Claim

         The Kiesslings' final claim against KIIC is a breach of warranty. Similar to a strict liability claim, the plaintiff must prove that “the product, as designed, was in a defective condition unreasonably dangerous to the user when it left the control of the defendant, and the defect caused his injuries.” Miles v. DESA Heating LLC, 2012 WL 1038677, at *8 (D.S.C. Mar. 28, 2012) (citing Madden v. Cox, 328 S.E.2d 108, 112 (S.C. Ct. App. 1985)). Again, the Kiesslings' only evidence that the flounder was dangerous and caused Mrs. Kiessling's injury is Jarvis's testimony.

         The Kiesslings concede that without Jarvis's testimony, “they cannot meet their burden, even at the summary judgment stage.” ECF No. 45 at 8. As a result, the key inquiries are to determine whether Jarvis is qualified to provide his expert opinion on causation and whether his opinion is reliable. If he is, then the summary judgment is not appropriate for the strict liability and breach of warranty claims at this time.

         B. Motion to ...


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