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
composed of Judge Terri F. Love, Judge Madeleine M. Landrieu,
Judge Joy Cossich Lobrano
Madeleine M. Landrieu Judge.
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.
AND PROCEEDINGS BELOW
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.
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.
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
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 ...