United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
Motion for Summary Judgment
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.
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).
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.
Strict Liability Claim
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.
Breach of Warranty Claim
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
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.
Motion to ...