COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71830 SABAH JAWHARI : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION PIZZA HUT : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 29, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 301149 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: LAWRENCE TUCKER, ESQ. THOMAS O'DONNELL, ESQ. Tucker & Cohen BARBARA J. MOSER, ESQ. 407 Leader Building McNeal, Schick, Archibald Cleveland, Ohio 44114 & Biro Co., L.P.A. 700 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25. Plaintiff-appellant Sabah Jawhari appeals from the summary judgment entered in favor of defendant-appellee Pizza Hut and dismissing plaintiff's claims arising out of adulterated matter in a home-delivered pizza. Plaintiff asserts that disputed issues of material fact precluded summary judgment and the trial court considered inadmissible evidence in reaching its judgment. We find merit to the appeal and reverse. The following facts appear from plaintiff's deposition (pp. 23- 39). On June 20, 1995, a little after noon, plaintiff ordered by telephone two pizzas (one pepperoni and cheese and one supreme) for home delivery by Pizza Hut. They were delivered to her home by defendant between 12:30 p.m.and 1:00 p.m. The pizzas were delivered in closed boxes which were directly placed upon plaintiff's kitchen table by defendant's delivery person. Both boxes were opened a few minutes later and plaintiff and her three children began eating at that time. The plaintiff began eating the supreme pizza and noticed nothing unusual at that time. She ate 4- 5 pieces within 15-20 minutes. Plaintiff was eating nothing else at the time. The three children were eating the pepperoni pizza until the plaintiff's daughter told her that there were "maggots" in the food. At that time, the plaintiff looked "real good" at the supreme pizza from which she had eaten and she viewed "maggots - 3 - coming out under the cheese." The plaintiff testified that she saw about 10-11 of the "worm like things" in the pepperoni pizza and saw more in her supreme pizza coming out from under the cheese. They stopped eating. About 15 minutes later, the plaintiff became nauseated, had stomach cramps and threw up several times. The children who had consumed the pepperoni pizza also became ill. Plaintiff sought medical aid the next day having suffered from diarrhea, weakness, dizziness and nausea. Plaintiff brought suit against Pizza Hut claiming she became ill as a result of eating the adulterated pizza. Defendant moved for summary judgment filing plaintiff's deposition, a report from plaintiff's physician and a report from the Ohio Department of Health, dated June 29, 1995, identifying 50 fly eggs on a specimen of pepperoni. The plaintiff opposed the motion. On November 29, 1995, the trial court granted defendant's motion for summary judgment holding that plaintiff has failed to show "proximate causation" and had "made no legal showing of cognizable emotional distress." A timely appeal ensued. We will address the assignments of error in the order presented. I. THE COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THAT THERE EXISTED GENUINE ISSUES AS TO MATERIAL FACTS. Under Civ.R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party - 4 - against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which - 5 - demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. There is sufficient evidence from the plaintiff's deposition testimony to present an issue of fact as to whether the defendant was negligent or breached an implied warranty in delivering adulterated pizza. "Defendant *** admitt[ed] that it owes plaintiff and other consumers a duty to use reasonable care in preparing and serving the pizza it markets." (Deft. Brf. in Support of Motion for Summary Judgment at 5). The issue then becomes whether that duty was breached by serving adulterated pizza. It is undisputed that the pizza was controlled by and in the possession of defendant up until shortly before plaintiff and her children began eating the product. The pizza was baked by - 6 - defendant and home delivered in closed boxes and placed on plaintiff's kitchen table. According to plaintiff, the maggots made their appearance soon after plaintiff and the children starting eating. The inference can certainly be drawn from this evidence that the pizzas became adulterated while in Pizza Hut's possession. An argument can also be made that it occurred in plaintiff's kitchen, although there is no evidence to support that conclusion. The key factual issues are: were the pizzas infested, and if so, when did it occur - before delivery by Pizza Hut or after the boxes had been opened at plaintiff's home. The issue of proximate cause is normally a question of fact. Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316. There being facts from which the jury could draw conflicting conclusions, summary judgment was inappropriate. Looking at the case in the light most favorable to the plaintiff, we find she has raised material issues of fact which precluded summary judgment. Although plaintiff complains of the trial court's consideration of the physician's report and the Department of Health analysis, we find these documents tend to support the plaintiff's contentions: (1) she became sick as a result of eating the adulterated pizza and sought medical help; (2) the Department of Health analysis establishes that there were 50 fly eggs on the pizza and "the eggs on the bottom of the egg mass were brown, possibly from the pepperoni being warm or from preservatives seeping from the pepperoni." In short, the pizza was adulterated. - 7 - That the Department of Health believes it is harmless to eat fly eggs does not alter the fact that plaintiff, as any reasonable person, might reflexively gag and suffer medical problems at the very thought of eating fly eggs. Nevertheless, defendant contends that even assuming the pizzas contained a "foreign substance," plaintiff did not suffer "any compensable injury" under Ohio law. Defendant's argument on this point is without merit. Recovery may be had for mental anguish as well as for pain, suffering and contemporaneous physical injury, however slight that physical injury may be. Shilling v. Mobile Analytical Services, Inc. (1992), 65 Ohio St.3d 252, 255; Davis v. Cleveland Railway Company (1939), 135 Ohio St. 401, 407. Wolfe v. The Great Atlantic and Pacific Tea Company (1944), 143 Ohio St. 643, is illustrative of this issue. The plaintiffs in Wolf had eaten canned peaches in which they discovered worms. Immediately, they both became nauseated and vomited. No medical testimony was offered to explain why they remained ill for several days. The Supreme Court held: The evidence clearly discloses that each of these plaintiffs did eat of the peaches and that there were worms in the can. Whether either of the plaintiffs actually ate a worm is beside the mark. We are of the opinion that the presence of worms in the can of peaches caused such peaches to be a corrupt and unwholesome provision. It cannot be denied that worms in food will ordinarily produce nausea followed by vomiting where persons, especially women, have eaten of such food. Such consequence should have been reasonably anticipated by those who offered such food for sale. - 8 - We are of the opinion that where the evidence discloses that plaintiff had eaten of unwholesome provision sold in violation of Section 12760, General Code, and immediately after discovering worms in the uneaten portion of such provision became nauseated and such plaintiff suffered a physical injury is a question of fact for the jury. Id. at 646. In the case below, plaintiff complained of nausea, stomach cramps, diarrhea, dizziness and vomiting following the ingestion of the pizza. Plaintiff also sought medical attention. Summary judgment was improperly granted. Assignment of Error I is sustained. Assignment of Error II is moot per App.R. 12(A)(1)(c). Judgment reversed and remanded for further proceedings consistent with this opinion. - 9 - It is ordered that appellant recover of appellee her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, PRESIDING JUDGE JAMES M. PORTER, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .