North Carolina Food Injury Arising out of Chain Restaurant Negligence

cheesecakeIn a recent North Carolina appellate case, the court considered parents’ claims related to the negligent injury of their minor daughter. The parents had sued a major chain restaurant in Durham County, alleging that it was incorporated in California but engaged in commerce within North Carolina under a Certificate of Authority and did business with the public in counties in North Carolina.

The parents claimed they ordered half a regular cheesecake and half an ultimate red velvet cheesecake from the defendant’s restaurant at a mall. The plaintiff told the defendant that her daughter was severely allergic to nuts and was told that the type of cheesecake the plaintiff ordered didn’t have nuts. However, an employee made a mistake and gave the plaintiff half a low carb cheesecake instead of a regular one. The low carb version had nuts. The minor daughter became violently sick due to the nuts and needed to be hospitalized.

The defendant moved to dismiss on the ground that the county where the complaint was filed was not the proper venue, since its registered office was in Wake County rather than Durham. The trial court denied the motion to dismiss but did transfer the case. The plaintiffs appealed the change in venue. It argued that this was a reversible error.

The appellate court explained that under N.C. Gen. Stat. § 1-82, a civil lawsuit needs to be tried in the county where either the plaintiff or the defendants reside. The plaintiff could make an initial choice, but under N.C. Gen. Stat. § 1-83, if the chosen county wasn’t proper, the defendant could demand in writing that the trial be conducted in the proper county. The court could also change the place of trial for the convenience of witnesses and the ends of justice, or when a judge was interested as a party or counsel.

The appellate court explained that the defendant’s motion in this case was based only on the parties’ residence. The only ground in the lower court motion was that no party was a resident of Durham County. The appellate court explained that since the defendant had a registered office in North Carolina and a certificate of authority from the North Carolina Secretary of State, it was a domestic corporation, rather than a foreign corporation.

The court took judicial notice that the mall where the cheesecake was procured was in Wake County, and the defendant was operating there as of the date of the start of the lawsuit. The defendant also had a restaurant in Durham County. The plaintiff argued that even if the defendant was a domestic corporation, venue would be proper in Durham County under North Carolina General Statute § 1-79, which provided that a domestic corporation could be sued wherever its registered or principal office was located or where it maintained a place of business.

The plaintiff argued that the defendant kept a place of business in Durham County, so this was a proper venue. The appellate court agreed, noting that since the defendant maintained a restaurant in Durham County, it was a proper venue, and the trial court had made a mistake in changing the venue. The ruling was reversed.

If you or your child suffered injuries due to the wrongful conduct or negligence of another party, the experienced North Carolina personal injury attorneys at Maurer Law may be able to help you recover compensation. Contact us at 919-229-8359 or via our online form.

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