This post originally appeared on the SGR blog.
Jared Schaefer was served food at Tony’s Sushi restaurant that contained peanuts, an ingredient that was not listed on the menu. He alleged that the peanuts caused him to suffer an allergic reaction. Schaefer alleged that the restaurant was negligent in failing to warn him of the presence of peanuts in the food, creating a dangerous condition, and in failing to disclose the presence of a potential allergen.
Tony’s moved for summary judgment dismissing the complaint, arguing that it did not owe a duty to Schaefer, or, if it did owe a duty, that there was no causal connection between its alleged negligence and Schaefer’s injuries. Schaefer opposed the motion, arguing that triable issues of fact existed as to the duty owed by Tony’s and as to the causal connection between the presence of the alleged allergen and his injury.
The facts of this case, subject to some dispute, were summarized by the Court as follows: On September 29, 2014 at approximately 5:00 p.m., Schaefer went to Tony’s for dinner with his girlfriend. Schaefer testified he and his girlfriend ordered sushi and a chicken and lettuce wrap, which they shared for dinner. Schaefer testified he inquired about the ingredients in the wrap and told the wait staff that he was allergic to peanuts and was told the chicken wrap did not contain peanuts. Schaefer stated that he began to eat, took a bite of the lettuce wrap, and felt “immediate constriction in my throat.” He testified he could breathe, but that he could not swallow anything due to the tightness in his throat. He paid the bill and left the restaurant. After he arrived home, he used both a toothbrush and a makeshift cable wire that he cut from the back of his television set, and inserted those objects down his esophagus in an attempt to dislodge the obstruction he felt in his throat. Schaefer testified that three to four years earlier, food had become lodged in his esophagus and he was able to dislodge the obstruction himself using a similar method of sticking a makeshift wire, then from flooring, into his esophagus to push the food through.
On September 30, 2014, at 3:30 p.m., Schaefer went to the emergency department at Brookhaven Memorial Hospital. He testified he decided to seek emergency care because he was concerned that the use of the makeshift tool may have damaged his esophagus. In the emergency room, Schaefer reported to hospital staff that he had a peanut allergy and that he had eaten food containing peanuts the night before. Schaefer testified he was given Benadryl intravenously in the emergency room, because he could not swallow a pill. He also testified that he told hospital staff that his last allergic reaction was 25 years ago.
Schaefer’s medical records indicated that he reported to hospital staff that his allergy to peanuts was in childhood, and that he had a medical history of congenital esophageal narrowing. He further reported to hospital staff that he had problems swallowing “almost every day for years which is getting worse over time.” He also reported to hospital staff that over the course of the past 20 years, it had been his practice to “stick a wire down his throat to push food” down, but that this time it was difficult because he “felt he ripped something and became swollen.”
Schaefer reported to the hospital staff that he had undergone a pneumatic dilation of his esophagus 20 years prior, to treat his narrowed esophagus. The medical records indicated that his hospital gastroenterologist, Dr. Berman, was concerned that the makeshift tool that Schaefer inserted into his esophagus “could conceivably” have caused his injury. Dr. Berman ordered an esophagogastroduodenoscopy. The procedure was performed on October 1, 2014, and during the procedure a food bolus was removed from Schaefer’s lower esophagus. Schaefer was discharged and diagnosed with eosinophilic esophagitis. Schaefer was not diagnosed with anaphylaxis or an allergic reaction.
Tony’s made a prima facie case of entitlement to summary judgment. Tony’s submitted the curriculum vitae and affirmed report of Dr. Kelly Johnson-Arbor, who was licensed to practice medicine in the State of New York and board certified in emergency medicine. Dr. Johnson-Arbor opined that Schaefer’s injuries were the result of esophageal food impaction, a condition directly related to his underlying medical condition of eosinophilic esophagitis, and not due to an allergic reaction. Dr. Johnson-Arbor averred that she reviewed the medical records of Schaefer, including the records of the endoscopy procedure which was performed on October 1, 2014. Dr. Johnson-Arbor noted that, while Schaefer reported to medical personnel that he suffered from a peanut allergy, he had recently been exposed to peanuts the night before, and that he received treatment for a possible allergic reaction in the emergency department In her medical opinion, his records indicated that he did not exhibit any physical signs or symptoms consistent with a severe allergic reaction or anaphylaxis. Dr. Johnson-Arbor further explained that Schaefer’s failure to seek medical attention until almost 24 hours after knowingly ingesting an allergen substantiated her opinion that he was not suffering from a severe allergic reaction subsequent to the ingestion of the peanut-containing food. Dr. Johnson-Arbor averred that, after a biopsy of his esophagus, Schaefer was diagnosed with eosinophilic esophagitis, a chronic inflammatory disease of the esophagus, which placed him at risk of esophageal food impaction and obstruction. Dr. Johnson-Arbor also noted that Schaefer reported a history of food impaction, for which he would use a makeshift tool to push food down his throat to relieve the impactions. Dr. Johnson-Arbor opined, within a reasonable degree of medical certainty, that Schaefer’s food impaction on the date of the alleged negligence was more likely than not related to the presence of underlying eosinophilic esophagitis, not from exposure to peanuts.
Further, assuming, without deciding, that Tony’s owed and breached a duty of care to Schaefer, the Court found that Tony’s had established that Schaefer was the sole proximate cause of his injuries. The reckless act of Schaefer in inserting a makeshift wire into his throat to loosen food that was stuck in his esophagus, an act he had performed on prior occasions unrelated to an alleged allergic reaction, constituted an extraordinary intervening act as a matter of law.
Schaefer’s testimony indicated that, after inserting the makeshift wire down his throat, he went to the hospital out of concern that he may have caused damage to his esophagus. Further, Schaefer’s statements to hospital staff indicated that he became swollen after his use of the wire, and that he felt as if he had “ripped something” in his throat in the process. As such, Schaefer’s actions were intervening acts, extraordinary under the circumstances, not foreseeable, and independent of Tony’s conduct, breaking the causal nexus between Tony’s alleged breach of duty and Schaefer’s injuries.
In opposition, Schaefer failed to raise an issue of fact requiring trial on the issue of proximate cause. The party opposing the motion must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence, not mere conjecture, suspicion or speculation. Schaefer failed to offer competent evidence to raise a triable issue of fact with respect to causation, rather his opposition merely furnished conclusory statements regarding the cause of his injuries. Assuming, without deciding, that Tony’s owed and breached a duty of care to Schaefer, there was no causal connection between any alleged breach and Schaefer’s injury. In that regard, the food served by Tony’s merely furnished the occasion for the incident, but was not the proximate cause of Schaefer’s condition.
Accordingly, the motion for summary judgment dismissing the complaint was granted.