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Small v. Rouse's Enterprises, LLC

Court of Appeals of Louisiana, Fourth Circuit

June 7, 2017

CYNTHIA SMALL
v.
ROUSE'S ENTERPRISES, LLC D/B/A ROUSES MARKET

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-09286, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Matthew W. Langenberg COUNSEL FOR PLAINTIFF/APPELLEE

          Michael G. Gee Michelle D. Brooks Marla E. Mitchell PORTEOUS, HAINKEL & JOHNSON, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano

          Madeleine M. Landrieu Judge.

         The defendant, Rouse's Enterprises, LLC d/b/a/ Rouse's Market ("Rouse's") appeals the trial court's judgment finding it liable for the injuries suffered by the plaintiff, Cynthia Small, and awarding her damages. For the reasons that follow, we affirm.

         FACTS AND PROCEEDINGS BELOW

         Ms. Small filed a petition against Rouse's alleging that she had purchased a plate of prepared food from Rouse's buffet on June 14, 2014 and discovered a human fingernail in the food while she was eating it. Ms. Small claimed that as a result of Rouse's negligence, she suffered persistent nausea and vomiting requiring medical treatment, as well as mental anguish. Following a bench trial held on May 10, 2016, the trial court rendered a written judgment on May 19, 2016 finding Rouse's to be at fault and awarding the plaintiff $2500.00 in general damages, plus interest and costs. Rouse's now appeals that judgment.

         ISSUES

         On appeal, Rouse's contends that the trial court committed legal error by applying a strict liability analysis rather than a duty/risk analysis to find Rouse's at fault. Alternatively, Rouse's argues that the trial court committed manifest error by finding that it breached any duty it owed to Ms. Small.

         DISCUSSION

         The record does not reflect which standard the trial court employed to determine Rouse's liability. It is unquestionable, however, that the duty/risk analysis is the appropriate legal standard by which to determine liability in this case. In Porteous v. St. Ann's Cafe & Deli, 97-0837 (La. 5/29/98), 713 So.2d 45, an action against a restaurant for a deleterious substance (a pearl) present in a customer's oyster sandwich, the Louisiana Supreme Court rejected the application of strict liability and held that the proper standard to be applied was a duty/risk analysis pursuant to the Louisiana Civil Code. See La. C.C. arts. 2315-2317. The

         Supreme Court stated:

In Louisiana, there is no statute which expressly addresses a commercial restaurant's duty to serve food free of injurious substances. There is, nonetheless, no doubt that there is and should be such a duty. We determine that the duty is the following: A food provider, in selecting, preparing and cooking food, including the removal of injurious substances, has a duty to act as would a ...

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