# FILED
June 13, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

________________________________________________ MARVIN M CCARLEY a nd ELLISE MCCARLEY, Plaintiff s-Appell ants, Hardeman Circuit No. 8541 Vs. C.A. No. 02A01-9505-CV-00107 WEST QUALITY FOOD SERVICE, Defendant-Appellee.

___________________________________________________________________________

FROM THE HA

RDEMAN CO UNTY CIRCU IT COURT THE HONORABLE JON KERRY BLACKWOOD, JUDGE

T. Verner Smith of Jackson For Appellants Clinton V. Butler, Jr., and Dale Conder, Jr., of Rainey, Kizer,

Butler, Reviere & Bell of Jackson

For Appellee

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HEWITT P. TOM LIN, JR., SE NIOR JUDGE Plaintiff s, Ellise and Marvin McCarley, appeal from the order of the

trial court granting summary judgment in favor of the defendant, West Quality F o od Service, doing business as Kentucky Fried Chicken in Bolivar, Tennessee.2 On August 3, 1 993, Ellise McCarley purchased fried chicken f rom the Kentucky Fried Chicken store in Bo livar, Te nnessee , and imme diately to ok the chi cken home . That eve ning Ellise and Marvin McCarley, as well as the McCarley’s daughter and two grandchildren, ate the friedchicken for dinner. Mrs. McCarley ate one piece of ch icken but did not have any more because she felt that the meat did not smell or look “just right.” She did not tell Mr. McCarley or the other family members not to eat any more of the chicke n. On the morning of August 4, 1993, Mr. McCarley awoke with classic symptoms of food poisoning. Although the other family members who ate the chicken felt nau seous, no one was
as adversely affected as Mr. McCar ley. He stated in his deposition that he “lay around ” the house that day, taking over-the-counter medication in the hope of feeling better. On August 5, 1993, Mr. McCarley went to St. Francis Hospital in Memphis where he was treated by Dr. Mark Young, M.D., an internist. When Mr. McCarley arrived at Saint Francis, his symptoms included abdominal pain, a fever of 103 degrees, chills, ge nerali zed aches, and profuse diarrhe a. After performing blood cult

ures, Dr. Young determined that Mr. McCarley was suffering from food poisoning caused b y the inge stion of fo od contam inated wi t h campylob acters , a n organism found in the gut of cattle, pigs, and chicken and transmitted when those foo ds are no t proper ly cooked.
In his deposition, Mr. McCarle y testifie d that the

only food h

e ate on August 3, 1993, prior to eating fried chicken

that evening, was his daily breakfast meal consisting of bacon, rice , and eggs. Dr. Young testified that Mr. McCarley’s food poisoning could have been caused by campylobacters in either bacon or chicken. He stated that chicken is “at thehead of the list,” but the only way t

o have a definite answer is to test a

sample of both the chicken and the pork, which was not done. The sole issue on appeal is whether the trial court pro perly granted the defendant’s motion for summary judgment. A trial court should grant a motion for summary judgement when the mov ant d emonstrates that there are no genuine issues of mater ial fact and that the moving party is entitled to a judgment as a matter of law. Tenn .R.Civ.P. 5 6.03. The party moving for summary judgment bears the burden of demons t rating that no genuine issue of material fact exists. Byrd

v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993). On a motion for summary3

judgment, the trial court and the appellate court must consid

er the ma tter in the same manner as
a motion for directed verdict made at the clo se of the

plaintiff ’s proof ; that is, th e trial c ourt must take the strongest legitimate view of the evidence in favor of the non

moving par

ty, allow a

ll
reasona ble infere nces in favor of that party and discard all counterva iling evidence. Id. at 210- 11. The phrase “genuine issue” as stated in Tenn.R.Civ.P. 56.03 refers to genuine, factual issues and does not include issues involving legal conclusions to be drawn from the facts. Id . at 211. In Byrd , the cour

t stated: Onc e it is shown by the moving party that there is no ge nuin e issue of material fact, the nonmoving party must then demonstr ate , by affida

vits or disc overy ma

terials, that ther

e is a genuine, materia

l fact dis pute to wa

rrant a trial. Fowler v. Happy Goodman Family , 575 S.W.2d 496, 498 ( Tenn. 197 8); Merritt v. Wilson Cty. Bd. of

Zoning Appe

als , 656 S.W.2d 846, 859 (Tenn. App. 1983). In this re gard, Rul e 56.05 provides that a nonmoving partycannot si mply rely u pon his ple adings but

must s et forth specific facts showing that there is a genuine issue of material fact for trial. “If he does not

so respond, summary judgment . . . shallbe entered against him.” Rule 56.05 (Emphasis in original). To establish

a prima facie case of negligence, the pla intiff has the burden of proving that the defendant owed the plaintiff a duty, t hat he breached

that duty, and that the plaintiff was injured as a result of the defendant’s breac h. Keene v. Cracker Ba

rrel Old Co untry Store , 853 S.W.2d 501, 503 ( Tenn. Ap p. 1992). Genera

lly, summar

y judgment

is not a ppropr iate in a negligence case. Brookins v. The Round Tabl e, Inc. , 62 4 S.W.2d 547, 550 (Tenn. 1981). Issues such as proximate cau s e “are peculiarly issues for the trier of fact”; however, they may be resolve d by the co

urt wher e “infe rences from unc ontrover

ted fac ts are so

certain th at all reasonable men . . . must agree upon them.” Id
. Wher e the plaintiff relies upon expert testimony to establish proximate cause, such testimony is not admissible if it amounts to mere speculation. In Lindsey v . Miami Dev elopment Corp. , 689 S.W.2d 856, 862 (Tenn. 1985), the court stated:

A doctor’s testimon y t hat a certain thing is possible is no evidence at all. His opinion as to wha t i s possible is no more valid that the ju

ry’s own specula tion as to w

hat i s or is not possible. Almost anything is possible, and it is thu s imprope r to allow a jury to consider and base a verdict upon a ‘possible ’ cause of death. Id. Similarly, it would be improper for a jur y to base a

verdict in favor of p laintiffs on the4

possibility that Mr. McCarley receiv ed food p oisoning f rom Kentu cky Fried

Chicken p

roducts. In the case at bar, the facts establish that the plaintiffs ate f ried chicken

from Kentucky Fried Chicken, and that Mr. McCarley was later diagnosed with food poisoning. The parties do notdispute that Kentucky Fried Chicken had a duty to pr ovide its p atrons, t

he plaint iffs, with uncontaminatedfood product. The cause of Mr. McCarley’s food poisoning, however , is less clear. Plaintiffs rely on the testimony of Dr. Young, wh o stated th at either pork or chicken c ould have caused

Mr. McCarley’s food poiso ning. Dr. Young sai d that if chicken ha d been the

only meat product Mr. McCarley ate on August 3, 1993, it would, more likely than not, have caused the food p oisoning. H owever , Dr. You ng also stated that if Mr. McCarley ate bacon that day, the bacon was a possible source of the damaging bacteria. Dr. Young did notstate that either the fried chicken or the bacon was the more likely cause of Mr. McCarley’s illness. Proximate

cause is an essen

ti al element of a plaintiff’s claim in a negligence ca se. Keene , 853 S.W.2d at 503. In Lindsey the cour t stated: The plaint iff must introd uce evid ence wh ich aff ords a reasona ble basis for

the conclusion that it is more likely than not that the conduct o f the def

endant w as a cau se in

fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjec tur e or the probabilities are at best evenly balanced, it becomes the duty of the cour t to direc t a verdi ct for the defenda nt

. . . Id ., 689 S.W.2d at

861 (citing Prosser andKeeton, Torts, § 41, p. 269 (5th ed., 1984)). In the instantcase, plaintiffs have not introduced evidence f rom which a jury could

conclude that Mr. McCarley more like

ly than not

receiv ed food p oisonin g fro m contaminated fried chicken, as opposed to contaminated bacon. The trial cou

rt’s orde r granting plainti ffs’ summ ary judgment is affirmed. Costs of appeal a re asse ssed to the

plaintiff s-appellants.

_________________________________

W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.

_________________________________ DAVID R.FARMER,

JUDGE

_________________________________ HEWITT P. TOMLIN, JR. SENIOR JUD GE