1

*NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

DARRYL CLARK :

:

 Plaintiff, :

: Case No. 11-cv-1056 (FLW)

 v. :

:

DARDEN RESTAURANTS, INC., t/a :

RED LOBSTER, RED LOBSTER INC., : OPINION

a subsidiary of DARDEN :

RESTAURANTS, INC., GMRI, INC., :

JOHN DOES, INC., 1-5, & :

JANE/JOE DOES 1-5 :

:

 Defendants. :

____________________________________ :

WOLFSON, United States District Judge:

In this case, Plaintiff Darryl Clark (“Plaintiff” or “Clark”) has sued Darden Restaurants, 

Inc., Red Lobster, Inc., and GMRI, Inc., (collectively “Defendants” or “GMRI”) for injuries 

arising from Defendants’ alleged negligence. Plaintiff’s Amended Complaint asserts that 

Plaintiff sustained injuries to his eyes from a broken plate as the result of Defendants’ negligence 

in serving Plaintiff food at one of Defendants’ restaurants. In the instant motion, Plaintiff has 

moved for summary judgment on the issue of liability only. For the reasons that follow, the 

Court GRANTS Plaintiff’s Motion for Summary Judgment.

I. FACTS & HISTORY

The following facts are drawn from Plaintiff’s and Defendants’ statements of material 

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facts.1

On June 24, 2009, Plaintiff and his friend Sibbia Wise were at one of Defendants’ Red 

Lobster restaurants located in Lawrenceville, New Jersey. Pl. Facts at ¶ 1. On the same date and 

at the same Red Lobster, Stephen Harrison was employed by Defendants as a waitperson, and 

was responsible for bringing Plaintiff and Wise their food order. 

 Disputed factual issues will be addressed where necessary, and additional facts will be set 

forth as needed.

Id. at ¶¶ 2, 5-6. During the 

course of Plaintiff’s lunch, Harrison was delivering a plate of food, containing a lobster pizza, to 

Plaintiff’s table when the plate dropped from Harrison’s hand onto the tabletop in front of 

Plaintiff. Id. The plate, made of glass, ceramic, or similar material, broke into several pieces. 

Id. Shortly thereafter, Plaintiff and Harrison discovered that something had lodged in Plaintiff’s 

eyes. Id. at ¶¶ 12, 15-16. Harrison’s manager was notified, Plaintiff was brought eyewash, and 

the police and paramedics were called to the restaurant to attend to Plaintiff. Id.

Following this incident, Plaintiff has received medical treatment from Dr. Iftikhar M. 

Chaudhry for his eye injuries, including surgery to repair damaged corneas. 

at ¶ 13. 

Id. at ¶¶ 3, 15-17. 

In that connection, Dr. Chaudhry has opined that Plaintiff’s eye injuries are the result of a “glass 

foreign body.” Id.

Plaintiff filed an Amended Complaint, in which he asserted that Defendants’ negligence 

caused Plaintiff’s injuries and sought an unspecified amount of damages. Plaintiff then filed the 

instant motion for summary judgment on the issue of liability only. Defendants opposed the 

at ¶ 19.

 1 In moving for summary judgment, Plaintiff provided a Statement of Undisputed Material 

Facts pursuant to Local Rule 56.1. These facts are drawn primarily from Plaintiff’s and 

Defendants’ interrogatory answers and certain deposition testimony. Defendants submitted their 

own brief and Statement of Material Facts with their opposition papers, but these facts were not 

responsive to Plaintiff’s facts. Defendants apparently failed to notice that Plaintiff had submitted 

a Statement of Facts. In the months since Plaintiff filed his motion, Defendants have not 

attempted to supplement their material facts in any way. 

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motion and Plaintiff filed his reply thereafter. 

II. JURISDICTION

This matter is before the Court pursuant to the parties’ diversity of citizenship. See

III. STANDARD OF REVIEW

28 

U.S.C. § 1332. Plaintiff is a resident of New Jersey, and Defendants are incorporated and have 

their principal place of business in Florida. Although Plaintiff has requested an unspecified 

amount of damages, he asserts that the amount in controversy exceeds $75,000, which the Court 

determines to be supported by the nature of Plaintiffs’ claims and alleged injuries. Furthermore, 

the Court will apply New Jersey law to the substantive issues of this case, which the parties rely 

on as the governing law.

Summary judgment is proper only when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d 265 

(1986) (quoting Fed. R. Civ. P. 56(c)). In determining whether a genuine issue of material fact 

exists, the court must view the facts and all reasonable inferences drawn from those facts “in the 

light most favorable to the [non-moving] party.” Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.2d 538 (1986). For an issue to be genuine, 

there must be “a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986). For a fact 

to be material, it must have the ability to “affect the outcome of the suit under governing law.” 

Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant 

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of summary judgment.

IV. DISCUSSION

Under New Jersey law, “[i]n any case founded upon negligence, the proofs ultimately 

must establish that defendant breached a duty of reasonable care, which constituted a proximate 

cause of the plaintiff’s injuries.” Hansen v. Eagle-Picher Lead Co.

The facts of this case are largely undisputed and straightforward, and Defendants have 

provided only sparse opposition to Plaintiff’s motion by focusing on whether Harrison 

negligently caused the plate to fall and break. A more thorough recitation of the relevant facts is 

thus necessary to decide Plaintiff’s motion.

, 8 N.J. 133, 139-40, 84 A.2d 

281 (1951). Both Plaintiff and Defendants agree that the outcome of this case turns on whether 

Defendant’s employee, Harrison, was negligent in dropping the plate that broke in front of 

Plaintiff. 

Defendants have admitted that at one of their restaurants, their employee, Stephen 

Harrison, was carrying a plate of food to Plaintiff’s table, and that plate slipped from Harrison’s 

hand, fell to the table, and broke. See Def. Facts at ¶¶ 3-4; Pl. Facts, Ex. D. at ¶ 8 (Defendants 

Interrogatory answers). In that connection, Harrison testified during deposition as follows: “I 

was attempting to place . . . the lobster pizza [plate] on the table in the center of the table . . . and 

as I was going to place it in the center of the table, it slipped from my grasp and fell.”2 See

 2 Defendants challenge Plaintiffs’ reliance on certain portions of Harrison’s deposition 

testimony, primarily on the basis that such testimony would not be admissible at trial. See Fed. 

R. Civ. P. 32. In deciding this motion, the Court does not focus on any portions of the testimony 

that Defendants take issue with in their opposition. Moreover, Defendants’ argument in this 

regard is misplaced. 

Pl. 

“[C]ourts and commentators have rejected the notion that . . . [Fed. R. Civ. P. 32] governs 

the use of deposition testimony at a hearing or a proceeding at which evidence in affidavit form 

is admissible. . . . The reasoning behind this rejection is that deposition testimony taken under 

oath, even if failing to satisfy Rule 32(a)'s requirements, is ‘at least as good as affidavits.’” 

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Facts, Ex. C at 19 (Harrison Depo.); see also id. at 21 (testifying that the plate “simply slipped 

from my grasp”). Harrison further testified that the plate dropped from approximately twelve 

inches above the tabletop and that when it hit it broke into several large pieces. See id. at 20-21; 

see also Def. Facts at ¶¶ 3-4. Approximately ten minutes following the incident, Harrison 

testified that he returned to Plaintiff’s table and noticed that “there was some indication that 

something had become lodged in [Plaintiff’s] eye.” Pl. Facts, Ex. C at 25. After attempting to 

help Plaintiff himself, Harrison testified that he went to find the manager, and shortly thereafter 

observed the presence of police and paramedics at the restaurant. Id. at 29-30; see also Pl. Facts, 

Ex. D at ¶ 15 (Def. Interrogatory answers) (referencing EMT presence) Plaintiff also certified, in 

responding to Defendants’ interrogatories, that managers supplied Plaintiff with eyewash after 

the plate broke because Plaintiff immediately sensed something in his eye. See Pl. Facts, Ex. A 

at ¶¶ 13, 20, 23 (Pl. Interrogatory answers); see also

 

Tormo v. Yormark, 398 F. Supp. 1159, 1168-69 (D.N.J. 1975) (citations omitted). The Third 

Circuit has also condoned Tormo’s reasoning: “Indeed depositions can be used more freely on 

[summary judgment] motions than [Rule 32] would seem to indicate. A deposition is at least as 

good as an affidavit and should be usable whenever an affidavit would be permissible, even 

though the conditions of the rule on use of a deposition at trial are not satisfied. . . . [W]e find no 

support for [the] contention that Defendants should be precluded from relying on their own 

deposition testimony in support of their motion for summary judgment.” Palm Bay Imports, Inc. 

v. Miron, 55 F. App’x 52, 56-57 (3d Cir. 2003).

Pl. Facts, Ex. D at ¶ 16 (Def. Interrogatory 

answers). On these facts, the Court must determine what duty of care Defendants owed to 

Plaintiff, whether Defendants breached that duty, and whether Plaintiffs’ injuries resulted from 

that breach. 

In that connection, I further note that Federal Rule of Civil Procedure 56(e) requires that 

affidavits “set out facts that would be admissible in evidence.” However, a court may consider 

hearsay evidence at the summary judgment stage “if the out-of-court declarant could later 

present that evidence through direct testimony, i.e., ‘in a form that would be admissible at trial.’” 

Williams v. Borough of W. Chester, 891 F.2d 458, 466 (3d Cir. 1989); see also Petruzzi’s IGA 

Supermarkets, Inc. v. Darling–Del. Co., Inc., 998 F.2d 1224, 1235 n.9 (3d Cir. 1993) (holding 

that hearsay statement may be considered for summary judgment purposes because nonmoving 

party “simply has to produce the [declarant] to give . . . testimony”).

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Defendants concede that they owed a duty of care to Plaintiff. Indeed, “[i]t is well 

recognized that the common law imposes a duty of care on business owners to maintain a safe 

premises for their business invitees because the law recognizes that an owner is in the best 

position to prevent harm. . . . [T]he law recognizes that for certain activities conducted by 

operation of some types of business, particularly those that pose inherent risks to the participant, 

the business entity will not be held liable for injuries sustained ‘so long as [the business] has 

acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care 

commensurate with the nature of the risk, foreseeability of injury, and fairness in the 

circumstances.’” Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 306-07, 1 A.3d 678, 691 

(2010). Similarly, a business owner must “not create any condition which renders the premises 

dangerous.” O’Shea v. K Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997). Thus, “the 

operator of a restaurant is under the duty of reasonable care of the premises for the safety of 

those who enter by his invitation.” Hickman v. Dutch Treat Rest.

In the present case, it is axiomatic that a server in a restaurant has a duty not to drop a 

plate onto the table in front of patrons, particularly a breakable plate. Indeed, it is well 

established in the law of negligence that a restaurant breaches its duty of care to its patrons in 

any number of similar circumstances. 

, 3 N.J. 460, 464, 70 A.2d 764, 

766 (1950).

See, e.g., Haneke v. Mayflower Doughnut Corp., 58 

N.E.2d 69, 70 (Ohio Ct. App. 1944) (“It is our opinion that this defendant owed a duty to the 

plaintiff as its patron and guest, in the exercise of ordinary care, not to hand to or to place before 

the plaintiff a plate so hot that it might cause him injury.”); Miller v. Holsum Cafeteria, 2 So. 2d 

691, 692 (La. Ct. App. 1941) (“[T]he cafeteria owes to its patrons the duty of preventing, by 

every reasonable means, such accidents as the one which is made the subject of this suit, and we 

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find that it was negligence on the part of its servant to carry two trays over the head of and so 

near to Mrs. Miller as to cause the food on the tray, particularly the hot coffee to be precipitated 

upon her, by the slightest jar or jolt affecting his equilibrium and the stability of the tray. We 

have little difficulty in concluding that Mrs. Miller is entitled to recover.”); Rickner v. Ritz Rest. 

Co. of Passaic

Plaintiff’s principal argument is that, under the circumstances of this case, Plaintiff is 

entitled to an inference of negligence under the doctrine of 

, 181 A. 398, 399 (N.J. Sup. Ct. 1935) (“Food served at a restaurant imposes on the 

restaurateur the duty to use reasonable care to see that the food thus furnished shall be free from 

injurious substances and fit for human consumption. . . . And it has been held that the presence 

of glass in coleslaw, served a patron of a restaurant, raises a presumption of negligence in its 

preparation.” (Citation omitted.)).

res ipsa loquitur.

3

 Specifically,

Plaintiff claims that (1) a plate falling onto a tabletop is the type of action that bespeaks 

negligence because the plate would not fall absent the failure to exercise due care; (2) the falling 

plate was in the exclusive control of Harrison, Defendants’ employee, and thus Defendants; and 

(3) there is no evidence that Plaintiff’s own actions or neglect contributed to the plate falling. 

See Bornstein v. Metropolitan Bottling Co.

 3 “Res ipsa loquitur . . . is a rule of law that has its origin in negligence and governs the 

availability and adequacy of evidence of negligence in special circumstances. . . . Res ipsa 

loquitur is not a theory of liability; rather, it is an evidentiary rule that governs the adequacy of 

evidence in some negligence cases. Ordinarily, negligence is a fact which must be proved and 

which will never be presumed, . . . and the burden of proving negligence in any particular case is 

on the plaintiff. . . . The doctrine of res ipsa loquitur, where applicable, is a method of 

circumstantially proving the existence of negligence. . . . Specifically, the doctrine permits an 

inference of defendant’s want of due care when the following three conditions have been met: (a) 

the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the 

defendant’s exclusive control; and (c) there is no indication in the circumstances that the injury 

was the result of the plaintiff’s own voluntary act or neglect.” Myrlak v. Port Auth. of New 

York & New Jersey, 157 N.J. 84, 95, 723 A.2d 45, 51 (1999) (citations omitted; internal 

quotation marks omitted).

, 26 N.J. 263, 269, 139 A.2d 404 (1958).

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In opposing Plaintiff’s motion, Defendants argue that Harrison did not violate any 

standard of care by dropping the plate because it was merely accidental, and thus the doctrine of 

res ipsa loquitur is inapplicable to this case.

4

 Defendants’ argument is circular and unavailing; 

the very crux of this case is whether Harrison’s “accident” was the result of negligence. In that 

connection, the Court notes that Defendants do not dispute that (1) the plate dropped from 

Harrison’s grasp onto the tabletop, (2) Harrison was the only person exercising control over the 

plate at the time it fell, (3) Plaintiff did not cause the plate to drop, and (4) no one or nothing

other than Harrison caused the plate to drop. Thus, the only issue is whether a plate falling from 

a server’s hand is an act that “bespeaks negligence.” See id.

“Whether an occurrence ordinarily bespeaks negligence is based on the probabilities in 

favor of negligence. Hence, 

 

res ipsa is available if it is more probable than not that the defendant 

has been negligent.” Myrlak v. Port Auth. of New York & New Jersey, 157 N.J. 84, 95 (1999). 

In other words, in order to demonstrate that the dropping of the plate bespeaks negligence, 

Plaintiff must demonstrate that “it is causally related to the actions or failure to act of any of the . 

. . [D]efendants.” Szalontai v. Yazbo’s Sports Cafe

 4 Defendants also argue that Plaintiff is not credible because of his criminal history. 

Because I decide this case based primarily on evidence other than Plaintiff’s own testimony and 

assertions, I am not concerned with the issue of Plaintiff’s credibility. Indeed, Defendants have 

presented no other evidence to meaningfully rebut Plaintiff’s arguments. As the Third Circuit 

has explained, “issues of credibility only defeat summary judgment ‘[w]here an issue of material 

fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate 

their credibility’ . . . Thus, summary judgment is particularly appropriate where, notwithstanding 

issues of credibility, the nonmoving party has presented no evidence or inferences that would 

allow a reasonable mind to rule in its favor. In this situation, it may be said that the record as a 

whole points in one direction and the dispute is not ‘genuine.’ Schoonejongen v. Curtiss-Wright 

Corp., 143 F.3d 120, 130 (3d Cir. 1998) (citations omitted).

, 183 N.J. 386, 401 (2005). Here, the 

uncontroverted facts surrounding the dropping of the plate indicate a lack of due care on the part 

of Harrison and Defendants. Harrison testified in deposition that the plate felt “a little slippery” 

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and “a little greasy.” Pl. Facts, Ex. C at 22 (Harrison Depo.). Moreover, Harrison also testified 

that he had only dropped objects less than ten times in his five years of experience as a server –

and he had never dropped a plate on a table or ever seen another server drop something on a 

patron’s table. See id. at 32. Simply put, Harrison’s testimony demonstrates that it is 

significantly more probable than not that the plate fell from his hands due to some failure to 

exercise due care on his part or the part of the Defendants. Given these undisputed factual 

circumstances surrounding the incident, Defendants’ conclusory assertion that Harrison’s 

conduct was only an accident is insufficient to raise a genuine issue of whether Harrison properly 

exercised due care. See Kaucher v. County of Bucks, supra, 455 F.3d at 423 (“For an issue to be 

genuine, there must be a sufficient evidentiary basis on which a reasonable jury could find for 

the non-moving party.”). To reiterate, Defendants have proffered no evidence that the plate fell 

from Harrison’s hand for any reason other than Harrison and Defendants’ failure to exercise due 

care. In contrast, Plaintiff has proffered unrebutted, competent evidence that the accident 

resulted solely from Harrison’s conduct, and thus has “reduce[d] the likelihood of other causes 

so that the greater probability of fault lies at defendant’s door.” Jimenez v. GNOC, Corp., 286 

N.J. Super. 533, 545 (App. Div.), cert. denied, 145 N.J. 374 (1996). Accordingly, I conclude that 

Plaintiff is entitled to an inference of negligence under the doctrine of res ipsa loquitur, which 

Defendants have not rebutted, and thus I conclude that Harrison and Defendants breached the 

duty of care owed to Plaintiff when Harrison dropped the plate onto Plaintiff’s table.5

 See

Stelluti v. Casapenn Enterprises, LLC

 5 Contrary to Defendants’ argument, because the doctrine of res ipsa loquitur, where 

applicable, provides an inference of negligence, it is not necessary for Plaintiff to prove precisely 

how Harrison failed to exercise due care. The dropping of the plate demonstrates negligence 

because the negligence of that action “speaks for itself.” See Myrlak v. Port Auth. of New York 

& New Jersey, supra, 157 N.J. 95.

, supra, 203 N.J. at 306-307.

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Furthermore, I also conclude that Plaintiff has demonstrated the absence of a genuine 

dispute over whether the broken plate caused Plaintiff’s injuries. Plaintiff alleged that fragments 

from the plate dropped by Harrison caused the damage to his eyes, and Plaintiff specifically 

certified that splinters from the broken plate entered his eye at the time the plate fell. See Pl. 

Facts, Ex. A at ¶ 2 (Pl. Interrogatory answers). As noted earlier, Harrison’s deposition testimony 

also supports Plaintiff’s argument; Harrison testified that shortly after the plate broke, he noticed 

that Plaintiff had something in his eye, Plaintiff was supplied eyewash, and paramedics were 

called to the restaurant for Plaintiff. Moreover, Plaintiff submitted documentation from his 

treating physician, Dr. Chaudhry, who stated that he could testify “with a reasonable amount of 

medical certainty . . . that [Plaintiff’s eye damage] symptoms were directly related to his injury at 

Red Lobster . . . .” Pl. Facts, Ex. E1.6 Significantly, Defendants have not offered any evidence 

to contradict this chain of events or challenge the nature of Plaintiff’s injuries. Instead, 

Defendants argue parenthetically that Harrison testified that the plate broke into three or four 

pieces only without shattering or splintering. See Def. Facts at ¶ 3. Harrison actually testified 

that he could not recall whether the plate broke into only three or four pieces, or into more. See

Pl. Facts, Ex. C. at 20-21. Harrison also testified that he cleared the table off very quickly 

“because of the possibility that there might have been something that got in their salad or 

something like that . . . .” Id.

 6 Although this submission is not in the form of an affidavit or certification, Defendants 

have not submitted any evidence or argument contradicting Plaintiff’s assertion that his eyes 

suffer from damage from a glass-like foreign object.

at 23-24. Moreover, the mere fact that the plate broke into several 

large pieces does not preclude the existence of smaller slivers or fragments. Again, Defendants 

have proffered no evidence to suggest that Plaintiff’s eye injuries were the result of anything 

other than the broken plate, and thus Defendants’ arguments fail to raise a genuine issue of 

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material fact surrounding the cause of Plaintiff’s injuries. Accordingly, I conclude that Plaintiff 

has demonstrated that there is an absence of genuine dispute to the claim that the broken plate 

caused Plaintiff’s eye injuries.

This is not a difficult case. Plaintiff has put forth ample uncontroverted evidence 

demonstrating that Plaintiff sustained injuries because of Harrison’s breach of the duty of care, in 

light of the presumption of negligence afforded by the doctrine of res ipsa loquitur. Defendants, 

by contrast, have offered virtually no evidence to rebut these facts. Moreover, Defendants admit 

that they are Harrison’s employer and owner of the restaurant in which the incident occurred, and 

Defendants have not disputed that Harrison was acting within the scope of his employment when 

the incident occurred. Based on the foregoing, the Court concludes that Defendants are liable for 

Harrison’s actions in this case and thus for the injuries Plaintiff sustained on Defendants’ 

premises. See Carter v. Reynolds, 175 N.J. 402, 408-409 (2003) (“Under respondeat superior

CONCLUSION

, an 

employer can be held liable for the negligence of an employee causing injuries to third parties, if, 

at the time of the occurrence, the employee was acting within the scope of his or her 

employment.”).

For the reasons set forth above, the Court concludes that Plaintiff has met his burden of 

demonstrating that no genuine issue of material fact exists that Defendants’ negligence caused 

Plaintiff’s injuries. The Court therefore GRANTS Plaintiff’s Motion for Summary Judgment as 

to Defendants’ liability only. The issue of Plaintiff’s damages remains unresolved.

Dated: January 7, 2013

Freda L. Wolfson, U.S.D.J.

/s/ Freda L. Wolfson 

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