DISTRICT COURT CLARK COUNTY, NEVADA

Transcription

1 1 1 1 CRAIG MURPHY MURPHY & MURPHY LAW OFFICES 1 Park Run Drive, Suite 0 Las Vegas, Nevada WILLIAM D. MARLER, ESQ. MARLER CLARK 1 Second Avenue, Suite 00 Seattle, WA 1 Telephone: () - Facsimile: () - Pending Admission Pro Hac Vice Attorneys for Plaintiffs DISTRICT COURT CLARK COUNTY, NEVADA TZAHI SALOMON and JULIA ) SALOMON, husband and wife, ) ) Plaintiffs, ) ) COMPLAINT vs. ) ) JOHN SIMMONS, d/b/a, ) Case No.: FIREFLY TAPAS KITCHEN AND BAR, ) Dept. No.: ) Defendant. ) ) The above named plaintiffs, TZAHI SALOMON and JULIA SALOMON, husband and wife, by and through their attorneys of record, complain, state, and allege as follows: I. NATURE OF THE ACTION COMPLAINT FOR DAMAGES - 1 Tel. () - Fax () -

2 This lawsuit on arises out of an outbreak of Salmonella. The outbreak occurred among guests and other patrons who consumed food, drink or water prepared and served by the Firefly Tapas Kitchen and Bar restaurant, or the adjacent affiliated restaurant Dragonfly, (both Firefly herein, the restaurant at issue), located at 00 Paradise Road, Las Vegas, NV, during the period of April through April, The outbreak was caused by the consumption of food, drink, or water contaminated with Salmonella, a pathogenic bacteria. II. PARTIES.1 The plaintiffs, Tzahi Salomon and Julia Salomon, at all times material hereto, were husband and wife, and residents of Las Vegas, Nevada.. The plaintiffs went to the Firefly restaurant on Tuesday, April, 1, with Tzahi s brother, Avi, visiting from Israel, and three other friends. While there, plaintiffs ordered and consumed sangria, mojitos, and a number of different foods. The food and/or drink items then prepared and served by the Firefly restaurant were contaminated with Salmonella.. As a result of exposure to the Salmonella bacteria, the plaintiffs both became ill with a Salmonella infection. Tzahi started feeling ill late Wednesday, April, 1, and Thursday had to go to the Emergency Room, suffering from high fever, heartburn, stomach pain, diarrhea, and muscle cramps. Julia also suffered with a very strong headache, nausea, and diarrhea. Neither plaintiff has yet recovered.. Lab tests subsequently confirmed that Tzahi was culture positive for Salmonella. COMPLAINT FOR DAMAGES - Tel. () - Fax () -

3 The Firefly restaurant at all times material hereto was owned and/or operated by Defendant John Simmons, and/or his agents and employees. Defendant at all times material hereto was a resident of Las Vegas, Nevada.. As a direct and proximate result of the conduct of Defendant, and his agents, servants, and/or employees, plaintiffs were forced to endure great pain, suffering, and inconvenience, and were forced to submit to related medical care.. As a further direct and proximate result of the conduct of Defendant and his agents, servants, and/or employees, plaintiffs were forced to expend sums of money for doctors, hospitals, and/or other items necessary for their proper care and treatment.. As a further direct and proximate result of the conduct of Defendant and his agents, servants, and/or employees, plaintiffs were unable to perform some or all of their activities of daily living.. As a further direct and proximate result of the conduct of Defendant and his agents, servants, and/or employees, plaintiffs suffered a loss of earnings and loss of earning capacity. III. JURISDICTION AND VENUE.1 At all times relevant to this complaint, Defendant was a citizen of Nevada, and a resident of Las Vegas, Nevada. Accordingly, under NRS 1.0, personal jurisdiction is appropriate in the Justice Court of Clark County, Nevada.. Because Defendant is a resident of Las Vegas, Clark County, Nevada, venue is proper in Clark County Justice Court under NRS COMPLAINT FOR DAMAGES - Tel. () - Fax () -

4 IV. FACTS ABOUT THE FIREFLY RESTAURANT SALMONELLA RESTAURANT OUTBREAK Salmonella is an enteric bacterium, which means that it lives in the intestinal tracts of humans and other animals. Salmonella bacteria are usually transmitted to humans by eating foods contaminated with human or animal feces. Contaminated foods usually look and smell normal. Contaminated foods are often of animal origin, such as beef, poultry, milk, or eggs, but all foods, including vegetables, may become contaminated.. Once in the lumen of the small intestine, the bacteria penetrate the epithelium, multiply, and enter the blood within 1 to hours. As few as - cells of Salmonella bacteria can cause salmonellosis, or a more serious typhoid-like fever. Variables such as the health and age of the host, and virulence differences among the serotypes, affect the nature and extent of the illness. Infants, elderly, hospitalized, and immune-suppressed persons are the populations that are the most susceptible to disease, and suffer the most severe symptoms.. The acute symptoms of Salmonella gastroenteritis include the sudden onset of nausea, abdominal cramping, and bloody diarrhea with mucous over a period of days. There is no real cure for Salmonella infection, except treatment of the symptoms. Persons with severe diarrhea may require rehydration, often with intravenous fluids.. Persons with diarrhea usually eventually recover completely, although it may be several months before their bowel habits become entirely normal. A number of persons develop infectious colitis or irritable bowel syndrome as a consequence of their Salmonella illness. A small number of persons who are infected with Salmonella will go on to develop pains in their joints, COMPLAINT FOR DAMAGES - Tel. () - Fax () -

5 1 1 1 irritation of the eyes, and painful urination. This is called Reiter s syndrome and/or reactive arthritis. It can last for months or years, and can lead to chronic arthritis, which is difficult to treat.. On April, 1, the Southern Nevada Health District (SNHD), Office of Epidemiology (OOE) received reports of gastrointestinal illness from eight independent groups of patrons of Firefly on Paradise or the adjacent affiliated restaurant Dragonfly on Paradise (both Firefly herein) located at 00 Paradise Road, Las Vegas, NV. All patrons from these groups ate at the Firefly restaurant during April -, 1. Ill patrons reported symptoms of diarrhea and/or vomiting after they consumed food from Firefly restaurant, and many sought medical care for their illness. In response to these illness reports, the SNHD initiated an investigation.. On April, 1, the SNHD performed an investigative inspection and closed both Firefly restaurants to minimize ongoing risk of illness. The SNHD OOE, Environmental Health (EH) and Southern Nevada Public Health Laboratory (SNPHL) have been collaborating on the investigation and response to this Salmonella outbreak. The Nevada State Health Division was also apprised of the outbreak investigation.. At this time, it is estimated that at least patrons, including plaintiffs, and employees, who consumed food and/or drinks at Firefly during April -, 1 may have contracted Salmonella infection. COUNT I STRICT PRODUCT LIABILITY COMPLAINT FOR DAMAGES - Tel. () - Fax () -

6 The plaintiffs incorporate the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs was set forth here in its entirety.. The Defendant owns and operates the Firefly restaurant which was the source of a Salmonella outbreak during April -, 1.. At the Firefly restaurant, the Defendant manufactures food for sale to the public, and so manufactured the contaminated food that it served and sold to the plaintiffs.. Food that is contaminated with Salmonella is defective because it cannot perform in the manner reasonably to be expected of food, which is to nourish the body and promote health and wellness. Instead, Salmonella-contaminated food causes illness and injury, which, in light of the nature and intended function of food, is not the reasonably expected performance.. The defective food that the Defendant sold the plaintiffs was unreasonably dangerous and unsafe for its intended use because it contained a potentially lethal foodborne pathogen.. The defendant is strictly liable to the plaintiffs for the harm proximately caused by its manufacture and sale of the unsafe and defective food product.. The plaintiffs were injured and sustained personal injury and damages as the proximate result of the Defendant s manufacture and sale of the unsafe and defective food product, as set forth above. COUNT II NEGLIGENCE.1 The plaintiffs incorporate the preceding paragraphs of this Complaint, by this COMPLAINT FOR DAMAGES - Tel. () - Fax () -

7 1 1 1 reference, as if each and every of these paragraphs was set forth here in its entirety.. The Defendant designed, manufactured, distributed, and sold food and products that were adulterated with the Salmonella bacteria, a potentially deadly pathogen. These products, as a result of adulteration, were unfit for human consumption, and were not reasonably safe as designed, constructed, manufactured, and sold.. The Defendant owed a duty to all persons who were the restaurant s guests and customers to manufacture and sell food and drink that was safe to eat, that was not adulterated with potentially deadly pathogens, like Salmonella, and that was not in violation of applicable food and safety regulations.. The Defendant owed a duty to all persons who were its guests and customers to maintain its premises in a sanitary and safe condition so that no one eating at the restaurant, or purchasing food from it, would be exposed to, or infected by, a potentially deadly pathogen like Salmonella.. The Defendant breached the duties owed to persons who were the restaurant guests and customers by committing the following acts and omissions of negligence: failed to adequately maintain or monitor the sanitary conditions of its food, drink, water, premises, and employees; failed to properly operate its restaurant in a safe, clean, and sanitary manner; failed to apply its food safety policies and procedures to ensure the safety and sanitary conditions of its food, drink, water, premises, and employees; failed to prevent the transmission of Salmonella from its food, drink, water, premises, or employees to its business invitees and customers; failed to properly train its employees and agents how to prevent the transmission of Salmonella on its premises, or in its COMPLAINT FOR DAMAGES - Tel. () - Fax () -

8 1 1 1 food, drink, and water; and failed to properly supervise its employees and agents to prevent the transmission of Salmonella on its premises, or in its food, drink, and water;. The plaintiffs were injured and sustained personal injury and damages as the proximate result of the Defendant s negligent acts and omissions, as set forth above. COUNT III BREACH OF WARRANTY.1 The plaintiffs incorporate the preceding paragraphs of this Complaint, by this reference, as if each and every of these paragraphs was set forth here in its entirety.. By offering food and drink for sale at the restaurant, the Defendant expressly warranted that such food was safe to eat, that it was not adulterated with a deadly pathogen, and that the food had been safely prepared under sanitary conditions.. By offering food and drink for sale at the restaurant, the Defendant also impliedly warranted that such food was safe to eat, that it was not adulterated with a deadly pathogen, and that the food had been safely prepared under sanitary conditions.. The Defendant breached express and implied warranties with regard to the food it manufactured and sold to the plaintiffs.. The plaintiffs suffered personal injury and damages as a foreseeable consequence of the Defendant s breach of warranties, as set forth above, and is thus entitled to recover for all actual, consequential, and incidental damages that flow directly and in a foreseeable fashion from these breaches. COMPLAINT FOR DAMAGES - Tel. () - Fax () -

9 1 1 1 PRAYER FOR RELIEF WHEREFORE, the plaintiffs pray for the following relief: (1) That the Court award the plaintiffs judgment against the Defendant in such sums to fully and fairly compensate them for all general, special, and consequential damages incurred, as the proximate result of the unlawful acts and omissions of the Defendant; () That the Court award the plaintiffs the costs and disbursements and any other relief that the court deems just and equitable; () That the Court award the plaintiffs the opportunity to amend or modify the complaint, if necessary or appropriate after additional or further discovery is completed in this matter, and after all appropriate parties have been served. DATED this day of April, 1. CRAIG MURPHY MURPHY & MURPHY LAW OFFICES 1 Park Run Drive, Suite 0 Las Vegas, Nevada WILLIAM D. MARLER, ESQ. MARLER CLARK 1 Second Avenue, Suite 00 Seattle, WA 1 Telephone: () - Facsimile: () - Pending Admission Pro Hac Vice Attorneys for Plaintiffs COMPLAINT FOR DAMAGES - Tel. () - Fax () -