United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Morgan brought this suit in the Circuit Court of Cook County,
Illinois, against Boston Market Corporation, alleging that
she contracted norovirus due to eating food from one of its
restaurants. Doc. 1-1. Boston Market timely removed the suit
under the diversity jurisdiction, Doc. 1, and now moves for
summary judgment, Doc. 26. The motion is denied.
court recites the facts as favorably to Morgan as the record
and Local Rule 56.1 permit. See Johnson v. Advocate
Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir.
2018). At this juncture, the court must assume the truth of
those facts, but does not vouch for them. See Gates v.
Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).
December 25, 2016, at about 11:45 a.m., Morgan ate rotisserie
chicken and other items from a Boston Market restaurant in
Oak Lawn, Illinois. Doc. 30-1 at ¶ 6; Doc. 27-1 at 3 (p.
12:15-19). Later that day, Morgan “started getting
really sick [and] feeling really dizzy and nauseous.”
Doc. 30-1 at ¶¶ 9-13. Morgan went home, immediately
began vomiting and experiencing diarrhea, and proceeded to
the emergency room still later that day, where she was
admitted and spent four days. Id. at ¶¶
treating physician, Dr. Audrey Lynn Tanksley, diagnosed her
with norovirus. Id. at ¶ 21. Dr. Tanksley
testified that norovirus “[u]sually” and
“typically” elicits symptoms within 24-48 hours,
but that those are “general time frames” and that
symptoms can present within 24 hours of consuming
contaminated food. Id. at ¶¶ 25-26; Doc.
27-2 at 12 (pp. 43:14-44:3). While unable to say with
certainty that Morgan contracted norovirus from the Boston
Market meal, Dr. Tanksley concluded that her symptoms and
condition were consistent with that possibility. Doc. 30-1 at
summary judgment record includes no direct evidence that the
Boston Market employees who prepared Morgan's food did so
improperly. Id. at ¶ 27. The restaurant's
general manager has never had to discipline an employee for
improper food handling or storage, id. at
¶¶ 28, 30, and has no reason to believe that any
employee violated any store policies on December 25, 2016,
id. at ¶¶ 31-33. But the general manager
conceded that he has no way of knowing whether the food
Morgan ate was tainted. Doc. 32 at ¶ 45.
only meal that day was the one from Boston Market.
Id. at ¶ 38. Morgan's previous meal was
packaged ramen noodles boiled with water and nothing else.
Id. at ¶ 39. Morgan's co-worker, Selene
Winford, ate chicken that day from the same Boston Market
restaurant and also became ill. Id. at ¶ 37.
law provides: “By furnishing food to the general
public, the … retailer … impliedly warrant[s]
that the product is fit for human consumption at the time it
leaves [its] respective control, and where the food proves to
be deleterious, [it] may be required to respond in damages to
the injured consumer.” Tiffin v. Great Atl. &
Pac. Tea Co., 162 N.E.2d 406, 441 (Ill. 1959). Contrary
to Boston Market's submission, Morgan has adduced
evidence sufficient for a reasonable jury to find that she
contracted norovirus as a result of eating her Boston Market
meal on December 25, 2016.
Dr. Tanksley testified that Morgan's symptoms were
consistent with her having contracted norovirus from that
meal. Although Dr. Tanksley observed that norovirus symptoms
typically present between 24-48 hours of eating contaminated
food, she explained that those are “general time
frames” and that symptoms could present within 24
hours. Accordingly, that Morgan's symptoms presented
twelve hours (at most) after she ate her meal does not defeat
causation as a matter of law on summary judgment. Second,
Morgan ate only the Boston Market meal that day, and her
prior meal consisted of packaged ramen noodles boiled with
nothing but water. A reasonable jury could find that the
norovirus was food-borne and that, between the chicken and
ramen noodles, the chicken was the culprit. Third,
Morgan's co-worker, Selene Winford, also was sickened
after eating chicken from the same Boston Market restaurant
that day. Together, these facts allow for a reasonable
verdict in Morgan's favor.
Market cites three food poisoning cases disposed of on
summary judgment, Doc. 26 at 4-7, but each is
distinguishable. In Vuletich v. Alivotvodic, 392
N.E.2d 663 ( Ill. App. 1979), the diner was not examined by
his treating physician. See id. at 666 (“The
[diner] … was never examined by a physician or other
medical person either on the night of the accident, the next
morning or at any time thereafter in order to determine what
disorder, if any, he suffered from at the time of the
accident.”). In Greene v. KFC National Management
Co., 1985 WL 2110 (N.D. Ill. Aug. 1, 1985), the
plaintiff was not hospitalized until a week after eating the
allegedly contaminated food, and his treating physician
testified that the illness “might have been caused by
nerves, a dietary indiscretion, the flu or ‘almost any
disease a man is prone to get.'” Id. at
*2. In Warren v. Coca-Cola Bottling Co. of Chicago,
519 N.E.2d 1197 ( Ill. App. 1988), test results indicated
that the Coke bottle from which the plaintiff drank contained
far fewer bacteria than what an expert opined is
“necessary to cause food poisoning in humans.”
Id. at 570 (internal quotation marks omitted). Here,
by contrast, Dr. Tanksley examined Morgan within a day of her
eating the Boston Market meal, diagnosed her with norovirus,
and testified that the cause could have been the meal; a
person who ate a meal that day from the same restaurant also
was sickened; and there is no expert testimony essentially
eliminating the possibility that Morgan contracted norovirus
from the Boston Market meal.
Market's summary judgment motion is denied. This ...