MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO
V. Inge, Associate Justice.
case arises out of an allegation of food poisoning. The
plaintiff, Gerson Gallardo (" Gallardo"), brought
this action against the defendant, Wendy's Old Fashioned
Hamburgers of New York, Inc. (" Wendy's"),
alleging that in September 2013 Wendy's negligently
handled various food items causing him food poisoning. In the
Amended Complaint, he asserts various claims related to this
allegation, including failure to warn, breach of warranty,
strict liability, and negligence. This matter is currently
before the court on Wendy's Motion for Summary Judgment
and its related Motion to Strike. The Motion for Summary
Judgment will be ALLOWED, while the Motion to Strike
will be DENIED .
arrived at the Wendy's store located at 303 Central
Street, in Natick, Massachusetts sometime between 12:00 p.m.
and 1:00 p.m., on September 11, 2013 (the " date of the
incident"), in order to purchase lunch. According to
Gallardo, he ordered a grilled chicken sandwich,
french-fries, and a drink. According to logs maintained by
Wendy's, however, none of the three chicken sandwiches
prepared between the hours of 11:07 a.m. and 12:15 p.m.,
match Gallardo's order. Howard Aff., para. 1-6, Ex.
A. Regardless of exactly what he ordered, at some point
between 12:00 p.m. and 1:00 p.m., Gallardo consumed the food
he purchased. He does not contend the food smelled or tasted
peculiar or, that it appeared to have been cooked improperly.
date of the incident, the Wendy's store began
experiencing electrical problems around the time of
Gallardo's visit. According to Wendy's, the
electrical problems did not occur until after 12:15 p.m. and,
the problems did not affect the operation of the grill or the
frontend cash registers. Howard Aff., para. 1-6 .
Wendy's states receipts were issued for all purchases
made during this time period, but that, due to the electrical
problems, the store shut down completely between 12:15 p.m.
and 1:45 p.m. Howard Aff., para. 1-6 .
disputes Wendy's assertions, but he cites to no record
evidence to support his contentions. He claims the store was
already experiencing electrical issues when he arrived, which
was before 12:15 p.m. He claims the frontend cash register
was not working when he placed his order. According to
Gallardo, the cashier was writing orders down on a piece of
paper and calculating the money owed by looking at the menu
board. He states the cashier never gave him a receipt.
alleges that, on the date of the incident, approximately
three hours after eating at Wendy's, he became ill. Three
days later, on September 14, 2013, Gallardo went to
Marlborough Hospital, complaining of diarrhea. Marlborough
Hospital obtained a stool culture, which, when returned from
the lab on September 16, 2013, revealed the presence of
Camplobacter jejuni bacteria (" CJ
Bacteria"). At that time, Gallardo was prescribed a
standard course of Ciproflaxcin antibiotics to treat his
infection. He did not fill this prescription until three days
later on September 19, 2013.
September 20, 2013, Gallardo visited his primary care
physician complaining that he had developed a rash from the
Ciproflaxcin antibiotics. Gallardo visited his physician
again, on October 2, 2013, for a follow-up for the alleged
food poisoning. Subsequently, Gallardo saw his physician
several times for unrelated reasons. In his deposition,
Gallardo acknowledged that, after January 29, 2014, he sought
no further medical treatment for injuries suffered as a
result of the alleged food poisoning.
result of the CJ Bacteria found in his stool culture, on
September 23, 2013, Gallardo filed a telephone complaint
against Wendy's with the Town of Natick Board of Health
(the " BOH"). Later, on the same day, he filed a
formal complaint with the BOH. In connection with his
complaints, the BOH visited the Wendy's store located at
303 Central Street. The BOH determined that the grill that
cooked the grilled sandwich consumed by Gallardo on the date
of the incident was working properly. The BOH reviewed the
store's temperature and refrigeration logs for the date
of the incident. The BOH found no violations. Katz Aff.,
Ex. 3 .
MOTION FOR SUMMARY JUDGMENT
Standard of Review
court grants summary judgment where there are no genuine
issues of material fact and the record entitles the moving
party to judgment as a matter of law. See Mass.R.Civ.P.
56(c); Cassesso v. Commissioner of Corr., 390 Mass.
419, 422, 456 N.E.2d 1123 (1983). The moving party bears the
burden of establishing that there is no dispute of material
fact on every relevant issue. SeePederson v.
Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989).
A party moving for summary judgment who does not bear the
burden of proof at trial may demonstrate the absence of a
genuine dispute of material fact either by submitting
affirmative evidence negating an essential element of the
non-moving party's case, or by showing that the
non-moving party has no reasonable expectation of proving an