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Dellatorre v. Buca, Inc.

Florida Court of Appeals, Fourth District

February 1, 2017

PABLO DELLATORRE, Appellant,
v.
BUCA, INC., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE15-001103(14).

          Michael Lewis Beckman of Viles & Beckman, L.L.C., Fort Myers, for appellant.

          Mark D. Schellhase of GrayRobinson, P.A., Boca Raton, and Alissa M. Ellison of GrayRobinson, P.A., Tampa, for appellee.

          Forst, J.

         Appellant 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.

         Background

         In 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."

         Appellant 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."

         Appellant 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.

         Ultimately, 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.

         Analysis

         "The 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)).

         In 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 ...


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