68 of 72 DOCUMENTS

Rebecca G. Goins v. Wendy's International, Inc.

Record No. 910197

Supreme Court of Virginia

242 Va. 333; 410 S.E.2d 635; 1991 Va. LEXIS 149; 8 Va. Law Rep. 1260; CCH Prod.Liab. Rep. P12,972

November 8, 1991

PRIOR HISTORY: [***1] Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Randall G.Johnson, judge presiding.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff customer appealed from a judgment of the Circuit Court of the City ofRichmond (Virginia), which found in favor of defendant restaurant following a jury trial in the customer's action torecover damages allegedly sustained when she ate tainted food at one of the restaurant's stores.

OVERVIEW: Prior to trial, the customer filed a motion in limine to prevent the restaurant from introducing intoevidence the testimony of two restaurant employees that they had received no other complaints of food poisoningconcerning the date in question. The trial court denied the motion and permitted the testimony at trial. On appeal, thecourt held that the trial court erred by admitting the testimony into evidence. The court relied on the established rule thatevidence of the absence of other injuries was not admissible in a negligence action where a timely objection had beenmade. There was nothing in the record to justify the trial court's departure from the established rule, especially in lightof the fact that the absence of other complaints did not necessarily mean that there were no other incidents of sickness.

OUTCOME: The court reversed the judgment of the trial court and remanded the case for a new trial.

CORE TERMS: restaurant's, food, food poisoning, consumed, manager, admitting evidence, probative value,exclusion of evidence, present case, circumstantial evidence, tainted, evening, ate, negligence action, timely objection,collateral issues, opposing party's, direct evidence, force and effect, admissible, admitting, relevancy, warranty, distract,mislead, confuse, firmly, food served, salad bar, warranty of merchantability

LexisNexis(R) Headnotes

Evidence > Relevance > Confusion, Prejudice & Waste of TimeTorts > Negligence > General OverviewTorts > Products Liability > Breach of Warranty[HN1] Evidence of the absence of other injuries is not admissible in a negligence action when timely objection to it ismade. Such evidence introduces into the trial collateral issues, remote to the issue at trial, which would tend to distract,

Page 1

mislead, and confuse the jury. The rationale for not admitting evidence of the absence of other injuries is the same,whether the opposing party's case is based upon direct evidence, circumstantial evidence, or a combination thereof, andwhether the action lies in negligence or implied warranty.

Evidence > Relevance > Relevant Evidence[HN2] Evidence having rational probative value and which adds force and effect to other evidence will be admittedunless some other rule requires its exclusion.

HEADNOTES

Personal Injury -- Food Poisoning -- Evidence -- Absence of Other Complaints -- Admissibility

The plaintiff sued to recover for damages allegedly sustained when she consumed food at a chain restaurant's salad bar.Prior to trial she filed a motion in limine seeking to prevent the introduction of the testimony of two employees that theyhad received no other complaints of food poisoning related to food served by the restaurant on the day the plaintiffconsumed the allegedly tainted food. The trial court permitted the introduction of the challenged evidence. The case wassubmitted to a jury on the issue whether the defendant had breached an implied warranty of merchantability by servingfood that was unsafe for human consumption. The jury returned a verdict for the defendant upon which the trial courtentered judgment. The plaintiff appeals.

1. It is firmly established that evidence of the absence of other injuries is not admissible in a negligence action whentimely objection to it is made. Such evidence on collateral issues would tend to distract, mislead, and confuse the jury.

2. The rationale for not admitting evidence of the absence of other injuries is the same, whether the opposing party'scase is based upon direct evidence, circumstantial evidence, or a combination thereof, and whether the action lies innegligence or in implied warranty.

3. Evidence having rational probative value and which adds force and effect to other evidence will be admitted unlesssome other rule requires its exclusion. Here another rule requires the exclusion of evidence of the absence of otherinjuries.

SYLLABUS

In a personal injury case against a restaurant for food poisoning, the trial court erred in admitting evidence of the absence of othercomplaints, and the judgment is reversed and the case remanded.

COUNSEL: David B. Rheingold for appellant.

Robert L. Cox, Jr. (H. Aubrey Ford, III; Rilee, Cantor & Russell, on brief), for appellee.

JUDGES: Justice Stephenson delivered the opinion of the Court.

OPINION BY: STEPHENSON

OPINION

[*334] [**635] In this action, [***2] the plaintiff alleged that she contracted food poisoning from food consumed inthe defendant's restaurant. The sole issue on appeal is whether the trial court erred in admitting the defendant's evidenceof the absence of other complaints.

Page 2242 Va. 333, *; 410 S.E.2d 635, **;

1991 Va. LEXIS 149, ***1; 8 Va. Law Rep. 1260

Rebecca G. Goins sued Wendy's International, Inc. (Wendy's), to recover damages allegedly sustained when sheconsumed tainted food in a Wendy's restaurant. Prior to trial, Goins filed a motion in limine seeking to prevent Wendy'sfrom introducing into evidence the testimony of two restaurant employees that they had received no other complaints offood poisoning relating to food served by the restaurant on the day Goins consumed the allegedly tainted food. The trialcourt denied the motion and permitted the introduction of the challenged evidence.

The case was submitted to a jury on the issue whether Wendy's had breached an implied warranty of merchantability byserving food that was unsafe for human consumption. The jury returned a verdict for Wendy's, and the trial courtentered a judgment thereon. Goins appeals.

On the evening of June 9, 1989, Goins ate from a Wendy's restaurant's cold salad bar. Approximately an hour andfifteen minutes later, [***3] Goins became violently ill with vomiting and diarrhea. Later that evening, she wasadmitted to a hospital where she remained for two days.

On the day Goins was released from the hospital, she was examined by a physician. The doctor testified that Goins'sillness probably was the result of food poisoning caused by something she had eaten at the Wendy's restaurant.

The restaurant's manager testified that, although approximately 117 food bar meals [**636] were sold on June 9, 1989,he was not aware of any other complaints about the food. The manager admitted that he did not know the names ofeveryone who came into the restaurant that evening, that it was virtually impossible to track down the customers, that hedid not know which food items each customer ate, and that he did not know how many persons ate about the time Goinsdid. The restaurant's shift manager also testified [*335] that she received no complaints about food other than fromGoins.

Goins contends that the trial court committed reversible error in admitting into evidence the testimony of the restaurant'smanager and shift manager. Wendy's contends that, because Goins's case rests solely upon circumstantial evidence,"Wendy's certainly [***4] should be allowed to offer circumstantial evidence in rebuttal." We do not agree withWendy's.

[1-2] It is firmly established that [HN1] evidence of the absence of other injuries is not admissible in a negligenceaction when timely objection to it is made. Sykes, Adm'r v. Railway Company, 200 Va. 559, 564-65, 106 S.E.2d 746,751 (1959); Sanitary Gro. Co. v. Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685, 687 (1945). Such evidence introducesinto the trial collateral issues, remote to the issue at trial, which would tend to distract, mislead, and confuse the jury.See City of Radford v. Calhoun, 165 Va. 24, 36, 181 S.E. 345, 350 (1935); Moore v. City of Richmond, 85 Va. 538, 539,8 S.E. 387, 388 (1888). The rationale for not admitting evidence of the absence of other injuries is the same, whether theopposing party's case is based upon direct evidence, circumstantial evidence, or a combination thereof, and whether theaction lies in negligence or implied warranty.

[3] Wendy's also contends that "[t]he admission or exclusion of evidence based upon its relevancy [***5] is a mattergenerally left to the sound discretion of the trial court." In support of this contention, Wendy's relies upon a statement tothat effect we made in Peacock Buick v. Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981). While this statementis certainly accurate, we have never held that an established rule of evidence may be modified or nullified by a trialcourt's exercise of discretion. Indeed, we made clear in Peacock Buick that [HN2] "[e]vidence having rationalprobative value and which adds force and effect to other evidence will be admitted unless some other rule requires itsexclusion." Id. (emphasis added) (citing Levine v. Lynchburg, 156 Va. 1007, 1014, 159 S.E. 95, 97 (1931)). In thepresent case, as previously noted, another rule requires the exclusion of evidence of the absence of other injuries.

We find nothing in the present case that would justify our departure from the long-established rule relied upon byGoins. Indeed, a departure from the rule would interject evidence so problematical, due to the potential for a lack ofreporting and the [*336] variables of circumstances and conditions, [***6] that such evidence would have slight, ifany, relevancy or probative value. This is especially true in the present case because the absence of other complaints

Page 3242 Va. 333, *334; 410 S.E.2d 635, **635;

1991 Va. LEXIS 149, ***2; 8 Va. Law Rep. 1260

does not necessarily mean that there were no other incidents of sickness.

Consequently, we hold that the trial court erred in admitting evidence of the absence of other complaints. Accordingly,the trial court's judgment will be reversed and the case remanded for a new trial.

Reversed and remanded.

Page 4242 Va. 333, *336; 410 S.E.2d 635, **636;

1991 Va. LEXIS 149, ***6; 8 Va. Law Rep. 1260