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Gallardo v. Wendy's Old Fashioned Hamburgers of New York, Inc.

Superior Court of Massachusetts, Middlesex

August 22, 2017

Gerson Gallardo
v.
Wendy's Old Fashioned Hamburgers of New York, Inc.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO STRIKE

          Garry V. Inge, Associate Justice.

         INTRODUCTION

         This 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 .

         BACKGROUND

         Gallardo 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.[1] 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.

         On the 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 .

         Gallardo 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.

         Gallardo 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.

         On 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.

         As a 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 .

         DISCUSSION

         THE MOTION FOR SUMMARY JUDGMENT

         I. Standard of Review

         The 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 ...


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