According to the record before the court, the Plaintiff indicated that he was eating breakfast with his son when he felt something in his mouth that felt like hard plastic. The Plaintiff asked his son to look into his mouth what it was but his son was unable to see anything.
The Plaintiff then went to the bathroom and saw that a tooth was hanging. The Plaintiff left Denny’s and went immediately to a dentist for treatment.
The Plaintiff did not know what happened to the alleged piece of plastic and opined that he may have swallowed it or spit it out. The Plaintiff also asserted that he did not have any problems swallowing it or possibly later passing it.
The court additionally noted that the Plaintiff could not describe what color the object was and had only testified that it felt like a little, hard chip. The Plaintiff additionally admitted that he was not able to isolate the piece of plastic in his mouth with his tongue.
The court also noted that the Plaintiff did not tell anyone at Denny’s about the broken tooth before he left the restaurant. It was also confirmed that his son did not tell anyone. After the Plaintiff went to the dentist and his tooth was repaired, he then returned to Denny’s in order to explain what happened.
The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to meet his burden of proof of negligence due to the Plaintiff’s failure to produce the piece of plastic or the foreign object alleged to have been in the food.
In granting the Motion for Summary Judgment, the court noted that the Plaintiff not only failed to produce the foreign object for inspection, but the Plaintiff never even saw the item himself and was unable to describe it with any particularity.
|Judge Tina Polachek-Gartley
Judge Polachek-Gartley noted that the Superior Court has held that permitting claims of potentially defective products to proceed where the consumer throws the product away after an accident would encourage false claims and would make the defense of the same more difficult and would potentially put a Plaintiff in a position of deciding whether to keep the item based upon whether that retention of the product would help or hurt the Plaintiff’s case.
The trial court in this Swartwood case found that the Defendant was prejudiced by the fact that the object cannot be examined and given that the defense had no opportunity to address whether or not this piece of plastic or foreign body originated from its own kitchen or was a product from the food supplier.
The court additionally noted that the Defendant did to present any medical evidence or records that connected the object to the broken tooth.
There was no evidence that a foreign substance or object likely caused the tooth injury. Nor was any circumstantial evidence presented in this regard. Given that the facts placed on record by the Plaintiff were found to be insufficient to make out a prima facie cause of action for negligence against the Defendant, the court found that there was no issue to be submitted to the jury and, therefore, the Defendant’s Motion for Summary Judgment was granted.
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