Summary
granting summary judgment for defendant where plaintiff did not submit any probative evidence to establish that her flu-like symptoms were caused by a foreign object in the can of beans she consumed, since "there are many different causes of nausea, vomiting and stomach distress"
Summary of this case from Senchyshyn v. BIC Sport N. Am., Inc.Opinion
August 1, 1994
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants' cross motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed.
The plaintiff suffered nausea, vomiting, and diarrhea when she allegedly saw and/or ate a worm in a can of string beans which she had purchased at a supermarket. The plaintiff had the burden of proving that the food was defective and that her injury resulted from its consumption (see, Pendola v. M.S. Cafeteria, 206 Misc. 595; Uffner v. Campbell Soup Co., 207 Misc. 21; Willis v. Safeway Stores, 105 N.Y.S.2d 9; Stewart v. Martin, 181 S.W.2d 657 [Mo]; Williams v. Coca-Cola Bottling Co., 285 S.W.2d 53 [Mo. App.]). The plaintiff failed to submit any probative evidence which would establish that her flu-like symptoms were caused by the foreign object in the can of beans. The mere fact that the plaintiff became nauseous about one-half hour after consuming some of the contents of the can is insufficient to withstand the defendants' motion for summary judgment. "There are many different causes of nausea, vomiting and stomach distress" (Williams v. Coca-Cola Bottling Co., supra, at 57). Moreover, the report of the plaintiff's own examining physician, in describing her visit to his office the day after the alleged incident, makes no reference to the incident or to any examination or medication given in reference thereto. The plaintiff's "evidence of impurity * * * leaves her proof in the realm of speculation and conjecture" (Williams v. Coca-Cola Bottling Co., supra, at 57). Accordingly, the defendants' cross motion for summary judgment is granted and the complaint is dismissed. Mangano, P.J., Bracken, Joy and Hart, JJ., concur.