In Gibbons v. Luby’s, Inc., the plaintiff suffered anaphylaxis at a Texas restaurant after eating a salmon croquette that she did not know contained whitefish, to which she was allergic. After she started eating, her throat became scratchy, and her face turned red. A restaurant employee told her that the ingredients included whitefish.
The plaintiff and her friend headed for the hospital, but it was too far away. The friend stopped at a fire station, and the paramedics treated her until an ambulance could come. She was unconscious by that point. She was taken to the hospital and diagnosed with anaphylactic shock, acute respiratory failure, and hypoxemia. By that time, Gibbons was unconscious.
Gibbons was taken by ambulance to the hospital, where she was admitted and diagnosed with anaphylactic shock, hypoxemia, and acute respiratory failure. The physicians sedated her, intubated her, and put her on life support. She was discharged two days later.
Three days later, the plaintiff and her friend went back to the restaurant and talked to the manager, and they then spoke on the phone with the risk manager for the entities that owned the restaurant.
She sued the entities that owned the restaurant and claimed negligence, gross negligence, product liability, breach of contract, and violations of the Deceptive Trade Practices Act (DTPA). The friend also sued, asserting a bystander claim for mental anguish. One restaurant entity answered by saying it had been sued in the wrong name, and two didn’t answer. The plaintiff filed a motion for default judgment against the two that didn’t answer, and the judge signed a default judgment awarding them both substantial damages.
The two filed a motion to set aside the default judgment, which was granted. The defendants filed motions for summary judgment against the injured plaintiff’s and her friend’s claims. The trial granted the motion as to the bystander claim but allowed the plaintiff’s injury claim to proceed. The case went to a jury trial. A directed verdict was granted on the gross negligence, strict liability, and DTPA causes of action.
The jury returned a 10-2 verdict, which found the plaintiff 50% negligent and the restaurant 50% negligent. The damages award was significantly less than the default judgment. The defendants filed a motion for entry of final judgment and also filed motions to quash the depositions of the jurors, which were sent by the plaintiff’s attorney.
The plaintiff filed a motion to compel the juror’s testimony. She claimed that three of the jurors had made comments to other jurors that they didn’t believe in awarding damages for mental anguish or pain and suffering. The trial court granted the motions to quash. The plaintiff filed for a mistrial, arguing that the defendants misrepresented and concealed the identity of the food server that served the plaintiff. The trial court signed a final judgment ordering her to recover $12,262.30 from the defendants.
The plaintiff and her friend filed a motion for a new trial, which was denied. They appealed, raising 106 issues. Among other things, they argued that the court should not have dismissed the bystander claim. In Texas, a bystander can recover compensation for mental anguish if someone witnesses a traumatic injury to a close relative caused by the defendant’s negligence. The bystander can only recover if the injury was reasonably foreseeable. The bystander must have been near the scene, the shock must have arisen from the direct emotional impact on the bystander from contemporaneously observing the accident, and the bystander and the victim must have been closely related. The appellate court noted that emotional closeness is not enough and that the friend was not closely related to the victim.
The plaintiff also challenged the trial court for denying her motion for an instructed verdict on the defendant’s comparative negligence claim. She argued that there was no evidence to support the finding that she proximately caused her allergic reaction. The court explained that the defendants bore the burden of proof about whether a plaintiff bears some responsibility for her own injuries. If they submitted more than a scintilla of evidence of her comparative negligence, the trial court was right in denying the instructed verdict.
The appellate court explained that the Texas Supreme Court had recently clarified that proportionate responsibility is based on both the plaintiff’s and defendant’s pre-accident conduct that causes or contributes to the injuries, not the event or occurrence that results in the injuries. The record showed that she hadn’t made sure that the croquettes were safe to eat. Her friend testified that the plaintiff had explained she was allergic to whitefish, but when the woman talked to the investigator for the restaurant, she had been asked whether she asked about the ingredients of the food, and she replied by asking why she should have to ask. The friend made some statements in the background, which suggested she had not specifically asked if there was whitefish in the food.
The trial court’s judgment was affirmed.
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