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Golden Corral Corp. v. Lenart

Court of Appeals of Indiana

June 19, 2019

Golden Corral Corporation, Appellant-Defendant,
Kristina M. Lenart, Appellee-Plaintiff

          Appeal from the Clark Circuit Court Trial Court Cause No. 10C04-1310-CT-183 The Honorable Vicki L. Carmichael, Judge

          Attorneys for Appellant Crystal G. Rowe New Albany, Indiana Michael Wroblewski Adam S. Ira Indianapolis, Indiana

          Attorney for Appellee Marc S. Sedwick New Albany, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Golden Corral Corporation appeals following a jury verdict and $240, 000 award of damages in favor of Kristina M. Lenart on Lenart's claim for negligence in which Lenart alleged that Golden Corral failed to prepare and serve its barbeque chicken wings in a manner safe for human consumption and that as a result of consuming such chicken wings, Lenart suffered from food poisoning and related injuries. On appeal, Golden Corral presents four issues for our review:

1. Did the trial court abuse its discretion in allowing Dr. Julie Hutchinson to testify as an expert witness on Lenart's behalf?
2. Did the trial court abuse its discretion in denying Golden Corral's motions for judgment on the evidence?
3. Did the trial court abuse its discretion by instructing the jury on spoliation and res ipsa loquitur?
4. Did the trial court err in concluding that Lenart's claim was not governed by the Indiana Products Liability Act (IPLA)?

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] On Sunday, April 28, 2013, Lenart, her husband Kenneth, and their twelve-year-old daughter went to the Golden Corral restaurant in Clarksville, Indiana. When they arrived at the restaurant at approximately 1:00 p.m., there was a line at the front register and after they paid, they had to wait about ten minutes until a table became available. Lenart and her family then proceeded to the buffet.

         [¶4] When Kenneth grabbed a plate, he saw that there was food stuck between two plates and brought it to the attention of a Golden Corral employee. He then grabbed another plate and started choosing food items. As he walked down the buffet line, Kenneth noted that "the amounts of food were kinda slim-pickin's" and most of the food bins were "down to a bare minimum" with some bins completely empty of food. Transcript Vol. 2 at 239. He overheard an employee apologizing to patrons and advising that it could take up to thirty to forty minutes for food on the buffet to be replenished because they had been "slammed" with customers. Id. Kenneth then returned to the table. Because he did not get all the food he wanted on his first trip to the buffet, Kenneth continued to watch the buffet line to see when additional food was brought out. He described the circumstances as a "feast or famine type of thing," noting that "[e]very time that a tray of food was brought out it was kind of like . . . steel to a magnet, everybody just converted [sic] on it, . . . they wanted their food." Id. at 242.

         [¶5] During her first trip to the buffet, Lenart chose bone-in, barbeque chicken wings, mashed potatoes, and a slice of pizza and then returned to the table with her family. As she ate the wings, she did not perceive any problems or note that they were pink or undercooked. On her second trip to the buffet, Lenart grabbed about ten more barbeque chicken wings and ate all but a couple.

         [¶6] Lenart's daughter went through the buffet line three times, and on her third trip she opted for plain, bone-in chicken wings, which were in a tray separate from the barbeque chicken wings. After she bit into her first plain chicken wing, Kenneth "noticed it was like blood raw, it wasn't just pink, . . . it was raw." Id. at 244. Kenneth told her to stop eating her plain chicken wing and then he took it to the register and demanded to speak with a manager. While he was speaking with the manager, another female patron approached and "went off on the manager" about her chicken being raw.[1] Transcript Vol. 3 at 3. The manager immediately offered Kenneth a refund, which Kenneth accepted. The manager then threw away the plain chicken wing that Kenneth brought to his attention.

         [¶7] Lenart and her family left Golden Corral without finishing their food. They went to a nearby Lowe's home improvement store, where they shopped for approximately thirty to forty-five minutes before making the twenty-minute drive home. During this time, Lenart was feeling fine. Shortly after returning home, while she was preparing to plant flowers outside, Lenart suddenly started feeling sick and had to walk "real fast like a run" to the bathroom. Id. at 6. Lenart first had diarrhea and then she experienced intense vomiting. These symptoms appeared approximately one to two hours after Lenart left Golden Corral. Neither Kenneth nor Heather experienced any illness or adverse symptoms.

         [¶8] Later that evening, Kenneth took Lenart to the emergency room. Because she was not treated promptly, Kenneth took her to a second emergency room where she remained overnight. The following morning, Lenart was released.

         [¶9] On May 7, 2013, Lenart followed up with a family doctor with continued complaints of abdominal pain, nausea, and vomiting. Lenart was referred to a gastroenterologist, who, after an evaluation on May 28, 2013, referred her to Dr. Julie Hutchinson, a board-certified general surgeon. Dr. Hutchinson evaluated Lenart on May 31, 2013, at which time Lenart complained of continued abdominal pain and told Dr. Hutchinson that she was not able to keep food down. Dr. Hutchinson determined that Lenart had an umbilical hernia that required surgery, which Dr. Hutchinson performed on June 5, 2013.

         [¶10] After the surgery to repair the umbilical hernia, Lenart continued to complain of abdominal pain and nausea, leading to two additional surgeries to repair scar tissue that had formed at the first surgical site. Dr. Hutchinson believes Lenart might require additional surgeries in the future. Prior to this health incident, Lenart never had problems with her gallbladder, gastritis, pancreatitis, or vomiting. In the six months preceding her visit to Golden Corral, Lenart had not experienced any issues with heartburn or gastroesophageal reflux.

         [¶11] With regard to Golden Corral's food preparation, when Golden Corral receives its chicken wings from its distributor, the wings are raw and cold, but not frozen. Golden Corral's procedure for preparing the chicken wings is that the wings are cut into three pieces at the joints and the wing tips are discarded. The wings are cooked in a deep fryer at a temperature of 350 degrees for eight and a half minutes and then drained for 10 to 30 seconds. For barbeque chicken wings (as well as other types of flavored chicken wings), the fried wings are placed in a pan and heated sauce is poured over them. The wings are then transferred to an appropriate bin and placed on the buffet. Each different flavor of chicken wings is contained in its own separate bin, and each bin has its own dedicated tongs.

         [¶12] Golden Corral also has a procedure for ensuring that the food on its buffet is maintained at a temperature outside the "danger zone"-which refers to the temperature range that promotes the growth of bacteria.[2] Id. at 103. Four times a day (at 11 a.m., 2 p.m., 4 p.m., and 8 p.m.), Golden Corral takes the temperature of food on the buffet and the temperatures are noted in a temperature log. It is Golden Corral's policy that the buffet temperature logs are kept for ninety days, after which they are replaced with new temperature logs over the course of the next ninety-day period. In the case of chicken wings, the temperature is taken of individual chicken wings on the buffet. These logs do not provide information about how the food was prepared or cooked. Golden Corral does not have a corollary procedure for taking the temperature of food once it is cooked. Rather, the food is simply prepared and cooked according to the specified procedures. As pertinent here, Golden Corral did not preserve the buffet temperature logs of the chicken wings for the day Lenart visited the Clarksville location after the expiration of the ninety-day retention period.

         [¶13] With respect to food items that are returned or about which a complaint is made, Golden Corral did not, at all times relevant to this case, have a policy requiring preservation of such items. Generally speaking, a food item about which a patron complains would only be saved if the manager was directed to do so or if there is a confirmed form of contamination. Undercooked food is typically disposed of because there is no reason to keep it.

         [¶14] On April 30, 2013, two days after their visit to Golden Corral, Kenneth accessed Golden Corral's corporate website and submitted the following complaint:

We visited your Clarksville, IN location Sunday - THE CHICKEN BEING SERVED WAS BLOOD RAW -There was no ham, sausage, pizza, taco meat, meatloaf, chocolate in the wonderfall and the deserts [sic] were at a bare minimum - This place was pushing out RAW food and telling people it will be a 30-40 minute wait. The food was being pushed out without ample cooking time. My wife ended up with food poisoning and spent the night in a hospital from eating undercooked wings and chicken. I spoke with two managers and pointed these tings [sic] out and neithor [sic] of them seemed like they were very concerned about it. Other diners were complaining as well about the chicken being undercooked. I would like someone to contact me on this issue.

Exhibits Vol. 6, Plaintiff's Exhibit 1 at 4-5. Golden Corral responded to Kenneth's message on May 3, 2013, advising that his concerns had been forwarded to the District Manager for corrective action. Kenneth also received a call from a representative of Golden Corral assuring him that the matter was being investigated and that it was being taken "very serious." Transcript Vol. 3 at 17. Subsequently, at the direction of the district manager, Golden Corral's claims administrator sent a letter to Lenart dated May 8, 2013, asking Lenart to contact them. On June 7, 2013, Lenart's counsel wrote the claims administrator indicating his representation of Lenart, noting that Lenart was still being treated for her injuries, and stating that he would be in touch within two months. The claims administrator responded on June 19, 2013, requesting Lenart's recorded statement to complete its investigation.

         [¶15] On October 24, 2013, Lenart filed a complaint for negligence alleging that Golden Corral failed to prepare and serve its barbeque chicken wings in a manner safe for human consumption and that as a result of eating such chicken wings, she sustained injuries and damages. In its answer, Golden Corral denied the essential averments of Lenart's complaint and asserted affirmative defenses, including that the claimed defective product conformed to the generally recognized state of the art under the IPLA.

         [¶16] Prior to trial both parties unsuccessfully moved for summary judgment. In support of her motion for partial summary judgment, Lenart submitted the affidavit of Dr. Hutchinson in which Dr. Hutchinson stated: "As of May 31, 2013, it was my understanding that in the weeks prior, [Lenart] visited a Golden Corral restaurant, located in Clarksville, Indiana, where she unknowingly consumed undercooked chicken wings." Appellant's Appendix Vol. 2 at 60. Based on her conversations with Lenart, a review of Lenart's medical history, and her experience, Dr. Hutchinson noted that she engaged in a differential diagnosis and concluded "[t]o a reasonable degree of medical probability, it is more probably true than not true, that [Lenart]'s umbilical hernia was caused by her violent ...

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