MIKE GUSS AND JOSEPH BAES OBTAIN SUMMARY DISPOSITION IN ALLERGIC FOOD REACTION CASE

In Joshua Blackburn vs Whitey’s Restaurant, Inc., Genesee County Circuit Court, Plaintiff alleging that while eating at Defendant’s restaurant, he consumed food that was contaminated by shellfish, claiming that he warned staff of a shellfish allergy when ordering. The Plaintiff had actually ordered a bivalve “shellfish” and baked cod.  Relying on Plaintiff’s deposition testimony, a motion for summary disposition was prepared pursuant to MCR 2.116(C)(10), on the grounds that Defendant cannot be found liable where Plaintiff is both unaware as to the extent of his allergies and what caused his allergic reaction.  We also argued that Plaintiff did not possess any proofs as to what caused his allergic reaction beyond speculation and conjecture. We were able to demonstrate through Plaintiff’s deposition testimony that he never received an allergy test and, therefore, was unaware of the full extent of his allergies. We further argued that, while he had two previous minor allergic reactions, he ultimately did not receive treatment as a result of either incident.  In addition, there was inconclusive evidence to support that those reactions were caused by shellfish.  The Court granted Defendant’s motion for summary disposition, dismissing the matter in its entirety, with prejudice.