final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
Michael Lewis Beckman of Viles & Beckman, L.L.C., Fort
Myers, for appellant.
D. Schellhase of GrayRobinson, P.A., Boca Raton, and Alissa
M. Ellison of GrayRobinson, P.A., Tampa, for appellee.
Pablo Dellatorre appeals the trial court's final summary
judgment in favor of Appellee Buca Restaurants, Inc.
("Buca"). We affirm without discussion
Appellant's first argument on appeal regarding whether
the trial court impermissibly relied on personal opinion when
granting Buca's motion for summary judgment. We write
solely to address Appellant's second contention that
there remained genuine issues of material fact precluding
summary judgment. As discussed below, we agree with Appellant
and reverse and remand.
2014, Appellant dined at one of Buca's restaurants, where
he had eaten twice before. He ordered the "Linguine
Frutti di Mare, " a pasta dish he had eaten on one of
his previous visits, which the menu described as having
"shrimp, baby clams, mussels and calamari in spicy red
clam sauce." Accompanying the description was a picture
of the dish itself showing linguine surrounded by
approximately twenty fully-intact mussel shells. A corporate
representative for Buca testified at a deposition that,
according to standard operating procedure, chefs typically
prepare this dish by placing linguine in the center of the
plate, and then surrounding the linguine (and the other
seafood) with a ring of mussels. Chefs visually inspect each
mussel, making sure not to serve broken mussel shells. As the
representative explained, "if there's a shell that
is not completely intact, meaning it's not opened fully
or it's not 100 percent, that dish would never even get
to the pasta stage."
testified at his deposition that, after consuming most of his
entrée, "[t]he plate was almost empty. I put the
last bite in my mouth, as we are here; then all of a sudden I
felt something here that was going down and cutting me. It
seemed as if it was opening my chest up in two as if I had
swallowed a knife." Appellant was rushed to the hospital
where surgery was performed. The medical staff extracted what
both parties agreed was "a broken mussel shell, about
one-and-a-half to two inches long."
also explained at the deposition that he "wasn't
expecting to find this broken shell in the plate of
pasta." He swore in an affidavit that he "did not
cause the shells to break in [his] dish at any point during
the meal. The shell was broken and lodged in [his] throat
[and] was served to [him] in the broken sharp condition by
Defendant, Buca, Inc." Another patron dining with
Appellant that night swore the same: that Appellant did not
break the mussel shell, and that Buca did instead. However,
Buca's representatives denied the restaurant could have
served Appellant a broken mussel shell. At a deposition,
Buca's corporate representative suggested at various
times that Appellant must have broken the mussel shell when
he ate it.
the trial court granted Buca's motion for summary
judgment, finding that there were no genuine issues of
material fact and that Appellant was himself negligent in
eating the broken mussel shell.
standard of review for an order granting summary judgment is
de novo." Int'l Christian Fellowship, Inc. v.
Vinh on Prop., Inc., 954 So.2d 1214, 1215 (Fla. 4th DCA
2007) (quoting 5th Ave. Real Estate Dev., Inc. v. Aeacus
Real Estate Ltd. P'ship, 876 So.2d 1220, 1221 (Fla.
4th DCA 2004)).
order for a party to prevail under summary judgment, he or
she must satisfy two steps: "[t]he judgment sought shall
be rendered forthwith if the pleadings and summary judgment
evidence on file show 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." Fla. R. Civ. P. 1.510(c);
see also Wills v. Sears, Roebuck & Co., 351
So.2d 29, 30 (Fla. 1977); Fini v. Glascoe, 936 So.2d
52, 54 (Fla. 4th DCA 2006). As the Second District Court of
Appeal stated, when a record "raises even the slightest
doubt that an issue might exist, that doubt must be resolved