Opinion
No. C98-0046 MJM.
November 9, 1999.
ORDER
Opinion and Order on Defendant's Motion for Summary Judgment
This matter is before the Court on a defense motion for summary judgment. Plaintiffs Carol Knight and the Estate of Georgia Hennessey ("the Estate") filed this lawsuit against Defendant Wal-Mart Stores, Inc. ("Wal-Mart"), after Knight's two-year old daughter, Georgia Hennessey, choked on a portion of hot dog at the Sam's Club in Cedar Rapids, Iowa. Knight gave the beef frank sample to her daughter after she received it from a Sam's Club employee who was promoting the product at a food demonstration stand.
The Sam's Club is a subsidiary of Wal-Mart.
The matter was originally filed in the Iowa District Court in and for Linn County. (Doc. 1, Ex. A.) Wal-Mart removed the action pursuant to 28 U.S.C. § 1441 (removal from state court). (Doc. 1.) This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) (diversity).
In the complaint, the Plaintiffs maintain that Wal-Mart negligently caused Hennessey's death by committing the following acts:
(1) Wal-Mart improperly promoted and prepared the samples, i.e., cutting the samples 1.5 inches in length;
(2) Wal-Mart's improper promotion and preparation constituted an unreasonable risk of danger to invitees;
(3) Wal-Mart failed to keep the store in reasonably safe condition, including a failure to properly respond or administer to invitees and patrons under emergency conditions;
(4) Wal-Mart failed to properly select, instruct, train, or supervise its vendors in the promotion and preparation of food samples;
(5) Wal-Mart failed to warn of hidden dangers or unsafe conditions as to which it had knowledge.
(Doc. 46, at 2.)
Wal-Mart maintains that summary judgment is appropriate for three reasons. First, Wal-Mart maintains the Plaintiffs have failed to raise a genuine issue of material fact that Wal-Mart failed to exercise reasonable care at any point during the incidents leading up to Hennessey's death. Specifically, Wal-Mart maintains that serving hot dog portions which measure 1.5 inches in length is inherently safe and in no way poses an unreasonable risk to customers. Second, Wal-Mart asserts that Knight's act of giving her daughter the portion of beef frank constitutes a superseding cause which breaks the chain of causal events between the Wal-Mart's putative negligence and the Plaintiffs' injury. Third, Wal-Mart asserts that the Plaintiffs have failed to generate a fact question on the reasonableness of Wal-Mart's emergency response. Wal-Mart maintains that 12 minutes elapsed from the time a Wal-Mart employee placed the initial 9-1-1 emergency call until the time that the hot dog portion was extracted by paramedics. Wal-Mart asserts that because Hennessey would have suffered fatal brain damage during the 12-minute period, any alleged delay in Wal-Mart's call to emergency personnel did not constitute the proximate cause or the actual cause of the Plaintiffs' injury.
The Court heard oral argument on September 2, 1999. The matter is now ready for decision.
I. BACKGROUND
The following facts are not in dispute or are those viewed in a light most favorable to Ferrell. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
On August 30, 1997, Sam's Club employee Dorothy Jones arranged a display booth to market Albert Lea Beef Franks at the Sam's Club in Cedar Rapids, Iowa. Jones prepared the beef franks in individual portions and distributed them to the patrons. Wal-Mart policy dictates that its employees will not distribute samples to children without their parent's permission. (Pla.'s Statement of Undisp. Facts, Doc. 37, at 2.)
At approximately three-thirty that Saturday afternoon (Doc. 39, Ex. H; Doc. 46, at 7.), Knight gave her daughter a beef frank sample approximately 1.5 inches in length. At some point after Georgia Hennessey was given the sample, she began to choke. When Knight noticed that her daughter was choking, she immediately ran for help. Knight encountered Sam's Club employee Chad Bridenstine and instructed him to call 9-1-1. Bridenstine assessed the situation, called the front desk on his radio, and ordered the front desk personnel to call 9-1-1. (Doc. 37, at 2.) Police records indicate that Cedar Rapids police received a 9-1-1 call at 3:36 PM. (Doc. 39, Ex. H, at 1.) An ambulance was dispatched immediately from Mercy Hospital in downtown Cedar Rapids.
Dr. Denise Clark testified that the beef frank sample that was ultimately extracted from Georgia Hennessey's throat was "probably almost three quarters of an inch" in length. (Doc. 39, Ex. J, 22-24.) However, Renee Hatfield, the paramedic that extracted the hot dog from Georgia's throat, testified that the beef frank sample measured 1.5 inches in length. (Doc. 65, Ex. 1, at 73-74.) Hatfield also included the 1.5 inch figure in her contemporaneous paramedic incident report. Id.
Examining the evidence in a light most favorable to the Plaintiffs and also resolving all factual disputes in favor of the Plaintiffs, the Court will rely on credible and contemporaneous testimony of Ms. Hatfield and assume for the purposes of this motion that the beef frank sample measured 1.5 inches in length.
When Georgia Hennessey first began choking, Knight and her boyfriend, Todd Astor, attempted to help the child. In the next aisle, off-duty Cedar Rapids fireman Rob Labs heard the call for 9-1-1. (Doc. 39, Ex. G, at 30.) When Labs arrived, he saw that Astor's and Knight's efforts were not working. Labs, a trained emergency medical professional and fireman, interceded and began efforts to dislodge the beef frank portion from the two-year old's throat. Labs initiated the "infant technique" to deal with the child's choking and repeatedly tried back blows and chest compressions. (Doc. 39, 41-42.)
Two police officers arrived at the scene, and carried Georgia Hennessey to the front of the store while Labs continued his efforts to save Georgia Hennessey's life. Labs and the officers carried Georgia to the front of the store so that the ambulance paramedics would reach her as quickly as possible when the ambulance ultimately arrived.
The ambulance arrived at the Sam's Club at 3:44 PM. (Doc. 45, at 3.) On-duty paramedics immediately initiated rescue efforts. At 3:48, the paramedics removed the beef frank sample from Georgia Hennessey's throat. (Doc. 39, Ex. M, 89-92.) When Georgia arrived at the St. Lukes Emergency Medical Room, the doctors attempted to resuscitate her for approximately thirty minutes. Their attempts were unsuccessful.
Georgia Hennessey continued to live on life support systems for several days. After the doctors advised her parents that, in all likelihood, Georgia had suffered fatal brain damage, they agreed to withdraw life support. Georgia Hennessey died on September 2, 1997.
II. ANALYSIS
Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (citing Fed.R.Civ.P. 56(c)); Kiemele v. Soo Line Railroad Co., 93 F.3d 472, 474 (8th Cir. 1996). "[S]ummary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).
Procedurally, the moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying the portions of the record which show a lack of a genuine issue. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (quoting Celotex, 477 U.S. at 323). When the movant has carried its burden under Rule 56(c), "its opponent must do more than simply show there is some metaphysical doubt as to the material facts." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The facts and circumstances upon which the nonmoving party relies "must attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985).
When a motion for summary judgment is made and properly supported, the nonmoving party may not rely on bare allegations, but must set forth specific facts showing that there is a genuine issue for trial. LeBus v. Northwestern Mutual Life Ins., 55 F.3d 1374, 1376 (8th Cir. 1995). The nonmoving party must go beyond the pleadings and employ depositions, affidavits, answers to interrogatories, and admissions on file to marshal specific facts that show a genuine issue for trial exists. Celotex, 477 U.S. at 324. If the record as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue for trial exists, and the district court should grant the summary judgment motion. Matsushita, 475 U.S. at 586.
A. Ordinary Care
Wal-Mart maintains that the Court should grant summary judgment because "the Plaintiffs cannot prove that [Wal-Mart] was negligent in making hot dog samples available to its members." (Doc. 38, at 6.) While the Defendant invokes the law of premises liability in its moving papers, this action is actually based in common negligence. The gravamen of Wal-Mart's argument is that Wal-Mart's act of serving Carol Knight a 1.5-inch beef frank sample was reasonable as a matter of law. Wal-Mart maintains that many grocery stores serve similarly sized beef frank samples. Wal-Mart asserts that since "there is nothing inherently dangerous about hot dogs," it cannot be negligent.
A plaintiff must prove the following elements to recover in a negligence action: (1) the defendant was negligent; (2) the defendant's negligence was a proximate cause of damage to the plaintiff; and (3) the amount of damage. Hayward v. P/D/A Inc., 573 N.W.2d 29, 32 (Iowa 1998). Under Iowa law, "negligence" is defined as the failure to use ordinary care. Bartlett v. Chebuhar, 479 N.W.2d 321, 322 (Iowa 1992) (per curiam). Ordinary care is the care which a reasonably careful person would use under similar circumstances. Iowa Civil Jury Inst. 700.2 (1998). "Negligence" is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances. Id. Generally, questions of negligence, . . . and proximate cause are for the jury; it is only in exceptional cases that they may be decided as a matter of law. Iowa R. App. P. 14(f)(10) (1998); Keystone Elec. Mfg. v. City of Des Moines, 586 N.W.2d 340, 345 (Iowa 1998).
The Defendant's argument that serving hot dog samples is inherently reasonable is unpersuasive. This Court is unwilling to state as a matter of law that Wal-Mart's actions were reasonable and free from negligence. As the Defendant has failed to persuade us that this is an exceptional negligence action, the question of whether the beef frank sample was too large to distribute to patrons is best left to the jury. Accordingly, as far as Wal-Mart's argument that its actions were reasonable as a matter of law, the motion for summary judgment is denied.
B. Intervening Cause
The Defendants also assert that summary judgment is appropriate because Carol Knight's act of giving the beef frank sample to Georgia Hennessey constitutes a superseding cause which breaks the chain of causal events between the Wal-Mart's putative negligence and the Plaintiffs' injury. Essentially, Wal-Mart contends that its actions did not proximately cause Georgia Hennesey's death.
Under Iowa law, a defendant's conduct is not a proximate cause of a plaintiff's harm if the defendant's conduct is superseded by later-occurring independent act. Hayward, 573 N.W.2d at 32. It is clear that not all intervening acts constitute a superseding cause. Id. at 33. "[A]n intervening act that falls squarely within the scope of the original risk will not supersede the defendant's responsibility." Id. (quoting Hollingsworth v. Schminkey, 553 N.W.2d 591, 598 (Iowa 1996)). Thus, "the intervention of a force which is a normal consequence of a situation created by the actor's negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about." Rieger v. Jacque, 584 N.W.2d 247, 251 (1998) (quoting Restatement (Second) of Torts § 443, at 472 (1965)). Simply stated, reasonably foreseeable intervening acts will not relieve a defendant from liability. Tenney v. Atlantic Assoc., 594 N.W.2d 11, 21 (Iowa 1999).
In the instant case, Wal-Mart seeks to escape liability because Carol Knight gave the beef frank to Georgia Hennessey. This Court concludes, however, that Knight's act fails to "break the chain of causal events" between Wal-Mart's act of distributing beef frank samples and Georgia Hennessey's death. Hayward, 573 N.W.2d at 32. Carol Knight's act of giving her child the beef frank sample was foreseeable to Wal-Mart. Therefore, the Court finds that Knight's act was not a superseding cause of Georgia's death, and Wal-Mart's motion for summary judgment is denied as far as it relates to the superseding cause defense.
3. Actual and Proximate Causation
Wal-Mart's final argument is also one of causation. Wal-Mart asserts that it should not be held liable for Georgia Hennessey's death because Georgia would have suffered fatal brain damage in the time period between the 9-1-1 call and the time that the paramedics extracted the object from Georgia Hennessey's throat. Wal-Mart maintains that even if, as the Plaintiffs allege, its employees were negligent in failing to promptly call 9-1-1, the delayed response to the emergency did not constitute the actual cause or the proximate cause of Georgia Hennessey's death.
Initially, the Court believes that it is important to note that the Plaintiffs have offered no direct or credible evidence that Wal-Mart employees failed to call 9-1-1 immediately. The Plaintiffs merely speculate about a delay. Apparently, they base their speculations on the testimony of different witness that testified as to the approximate time of the onset of Georgia's choking. Nonetheless, the Court will accept the Plaintiffs' argument for the purposes of the motion.
The Plaintiffs maintain that if the object had been extracted from Georgia Hennessey's throat in seven minutes instead of twelve minutes, the child would have had a much better chance of survival. (Doc. 46, at 7; Doc. 65, Ex. 18.) While the Plaintiffs' point is certainly true ( See Doc. 65, Ex.'s 16, 17, 18.), it does not address Wal-Mart's argument that Georgia's death was not actually or proximately caused by any alleged delayed response.
The law does not impose liability for negligence unless a defendant's conduct is both the actual and legal cause of the injury. Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567 (Iowa 1997). In analyzing causation, the Court must consider two components: (1) whether the harm would not have occurred but for the negligence of the defendant (actual cause); and (2) whether the negligence of the defendant was a substantial factor in bringing about the harm (legal cause). Rieger, 584 N.W.2d at 251.
It is undisputed that twelve minutes elapsed between the time that the Cedar Rapids Police Department (CRPD) received the 9-1-1 call and the time the paramedics successfully extracted the beef frank sample. Even if Wal-Mart employees negligently delayed calling 9-1-1 for six minutes, this delay would not have decreased the time that elapsed between the 9-1-1 call and the paramedics' successful efforts. The medical experts agree that a child deprived of oxygen for twelve minutes would suffer fatal brain damage. In light of the evidence in the record, Georgia Hennessey would have suffered fatal brain damage whether the negligent delay occurred or did not occur.
The Plaintiffs' legal causation analysis and actual causation analysis are both seriously deficient. The Plaintiffs have failed to adduce substantial and credible evidence that Georgia Hennessey would have died "but for" the alleged delay in calling 9-1-1. Moreover, the Plaintiff has failed point to any evidence in the record that the alleged delay was a substantial factor in bringing about Georgia Hennessey's death. Accordingly, the Court finds that Wal-Mart's alleged delay in calling 9-1-1 did not actually cause or proximately cause Georgia Hennessey's death. Since the Plaintiffs have failed to generate a fact question on causation, summary judgment is appropriate.
The Plaintiffs also posit in their brief that since Georgia Hennessey may have "intermittently obtained oxygen" (Doc. 46, at 7.), her survival time may have been extended beyond the normal parameters. Unfortunately for the Plaintiffs, this speculation is unsupported by expert testimony in the record. The Plaintiffs have failed to adduce any evidence that supports its "intermittent oxygen" theory. The only expert to address the "intermittent oxygen" testified in the following manner:
Question by Plaintiffs' Attorney: "In what you have seen and what you have heard in your treatment of Georgia Hennessey on August 30, of '97, would her symptoms indicate any intermittent oxygen getting to her?"
Answer of Dr. Maureen Clark: "I think it would be sheer speculation."
While the Plaintiffs' theory seems plausible at first glance, without any evidence in the record, the Plaintiffs' unsubstantiated allegation is inadequate to survive Wal-Mart's motion for summary judgment. Pony Computer, Inc. v. Equus Computer Sys., 162 F.3d 991, 997 (8th Cir. 1998) ("Summary judgment is appropriate where there is no independent evidence, other than the petitioner's unsubstantiated allegations.") Accordingly, Wal-Mart's motion for summary judgment is granted as to the Plaintiffs' allegation that Wal-Mart negligently responded to Georgia Hennessey's emergency.
ORDER
Consistent with the terms of this Order, Wal-Mart's motion for summary judgment is GRANTED with respect to the allegation of negligent delay in responding to Georgia Hennessey's choking emergency.
Wal-Mart's motion for summary judgment is DENIED with respect to the remaining allegations of negligence in the Plaintiff's complaint.