Friday, January 25, 2013


Is Chicken Really the Devil’s Meat?

Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 doesn’t provide a definitive answer to this poultry puzzle but does provide a heart (and gut) wrenching portrayal of a plaintiff who suffered a massive physical meltdown after partaking of “raw ahi tuna, avocado, cucumbers and soy sauce” at a local eatery.  She tested positive for Campylobacter, a bacteria “not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common.”  Four practices were identified which could have lead to cross-contamination: (1) Wipe-down rags not sanitized between wiping down surfaces; (2) Insufficient sanitizer in the dishwasher; (3) Chicken tongs sometimes used for other food; (4) Raw vegetables stored under (unspecified type of) raw meat so that a drop of raw meat juice might get on the vegetables.  There was also testimony that “the waiter ... used a wet, unsanitized rag stored underneath the bar to wipe down ... [plaintiff’s] table.”

Sarti is a must read (if you have the stomach for it) for anyone prosecuting or defending a food poisoning case because of its exhaustive review of seminal cases in this genre including Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003.  Mr. and Mrs. Minder ate a Sunday afternoon lunch at a restaurant.  Afterwards husband had an upset stomach.  Three days later he began sweating, developed a fever.  His wife felt a little nauseated on that Sunday afternoon, and her symptoms lasted for two days, when she became feverish and chilled.  Both of them had Shigella Flexneri, Group B.  The appellate court reversed judgments in favor of plaintiffs because (per the Sarti Appellate Court’s analysis of Minder) “there was no evidence to reasonably infer a link between the particular kind of food poisoning involved and the specific unsanitary conditions at the restaurant.”

Minder compelled the Sarti trial judge (who, of course, didn’t have the benefit of the Sarti appellate opinion) to follow Minder’s “black-letter rule of law that inferences are off limits to prove a food poisoning case.”  So, even though he felt that plaintiff had won her case “fair and square,” the judge entered a jnov (judgment non obstante veredicto [judgment notwithstanding the verdict]) in favor of defendant restaurant thus vitiating the jury’s $3,225,000 award.

But, in the end, the sweet taste of victory was plaintiff’s.  The appellate court reversed the jnov  and reinstated the verdict, noting, “Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases.  Reasonable inferences drawn from substantial evidence are indeed available to show causation.”                        
The Satri jurists also distinguished Sarti from Reese v. Smith (1937) 9 Cal.2d 324 which concerned a seamstress, linked sausages, botulism and a judicial proclamation that “maggots themselves are ‘not poisonous,’ not necessarily confined to rotting food ... [and are] ‘but the larvae of insects, most commonly that of the housefly.’”

Lunch anyone?