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Sarti v. Salt Creek Ltd.

Court of Appeal of California, Fourth Appellate District, Division Three

October 27, 2008, Filed

G037818

Opinion

 [**508]  SILLS, P. J.—The trial judge in this case read Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003 [136 Cal. Rptr. 915] (Minder) for the proposition that reasonable inferences are never, or hardly ever, available in food poisoning cases. Based entirely on the Minder opinion, he granted a judgment notwithstanding the verdict (often called a “jnov”) even though the  [*1190]  judge himself made it clear he would have voted with the jury on the question of liability. 1 

We can understand why the judge was so cautious, but we do not think that Minder, strictly construed, should be read to preclude the use of reasonable inferences to show causation in food poisoning cases. To the degree that Minder may, arguendo, be susceptible for the proposition that inferences are unavailable in food poisoning cases, or that food poisoning defendants  [***3] are somehow accorded a special, protected status with an abnormally “heightened” standard of causation, we respectfully decline to follow it. 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. We will therefore reverse the jnov and order reinstatement of the original verdict.

 [*1191] 

I. BACKGROUND

On April 7, 2005, Alexis Sarti and a friend ate at the Salt Creek Grille. They split an appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce. Sarti became nauseous and chilled the next day. The day after that she suffered constant diarrhea, fever and chills. The diarrhea continued for the next 10 days. By April 19, Sarti was unable to move her legs and was having a hard time focusing her eyes. Her mother called the paramedics, who took her to the emergency room. Her admitting physician took a “food history.” She was put into intensive care, where a neurologist diagnosed a variant of Guillain-Barré syndrome (a disease that damages peripheral nerves). She was tested, and found to have campylobacter  [***4] bacteria, which was the only pathogen found in the  [**509]  sample. Expert testimony would later indicate that Sarti's Guillain-Barré was an idiosyncratic immunosuppressant reaction to the constant diarrhea brought on from campylobacter.

Campylobacter is not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common. Sarti's sickness was reported to the Orange County Health Department. The report resulted in a “food borne illness” report dated May 5, 2005—a little less than a month after the meal. The report identified four practices at the Salt Creek Grille that could lead to cross-contamination. Specifically: Wipe-down rags were not being sanitized between wiping down surfaces. There was also an insufficient amount of sanitizer in the dishwasher. Chicken tongs were sometimes used for other food (the tongs would take raw chicken off the grill and then cooked food would be touched with the same tongs). Raw vegetables were stored under “raw meat” (the expert testifying did not say what kind of raw meat), so that a drop of raw meat juice might get on the vegetables. There was also testimony that the waiter who served Sarti had used a wet, unsanitized  [***5] rag stored underneath the bar to wipe down Sarti's table.

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167 Cal. App. 4th 1187 *; 85 Cal. Rptr. 3d 506 **; 2008 Cal. App. LEXIS 1704 ***

ALEXIS SARTI, Plaintiff and Appellant, v. SALT CREEK LTD., Defendant and Respondent.

Subsequent History: Modified and rehearing denied by Sarti v. Salt Creek Ltd., 2008 Cal. App. LEXIS 2359 (Cal. App. 4th Dist., Nov. 26, 2008)

Review denied by, Request denied by Sarti (Alexis) v. Salt Creek, Ltd., 2009 Cal. LEXIS 258 (Cal., Jan. 21, 2009)

Prior History:  [***1] Appeal from a judgment of the Superior Court of Orange County, No. 05CC08588, Derek W. Hunt, Judge.

Disposition: Reversed with directions.

CORE TERMS

food poisoning, restaurant, food, causation, illness, cases, chicken, raw, probable cause, reasonable inference, causes, sentence, sick, trial judge, sausages, eating, trial court, substantial factor, contaminated, violations, unsanitary conditions, botulism, italics, instruction of a jury, substantial evidence, campylobacter, sanitation, treatise, touched, meat

Governments, Courts, Judicial Precedent, Torts, Products Liability, Theories of Liability, Breach of Warranty, Evidence, Inferences & Presumptions, Inferences, Weight & Sufficiency, Civil Procedure, Standards of Review, Substantial Evidence, Sufficiency of Evidence, Appeals, Abuse of Discretion, Trials, Jury Trials, Jury Deliberations, Judgments, Relief From Judgments, Motions for New Trials