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After the Franke’s, Inc V. Bennett ruling in the early 1940s, it became a prominently cited standard in food poisoning ligation. Even decades after the ruling it has still served as standard case precedence for the requirement of proof from plaintiffs seeking damages. The decision made by the California court of appeals in Minder v. Cielito Lindo Restaurant remains faithful to the standard of proof set in Franke’s.  The ruling in Minder is far from a solid acquittal of the Cielito Lindo Restaurant of any potential negligence. The accusers’ did have strong circumstantial evidence against the owners of Cielito Lindo. Making it reasonable to question the wholesomeness of the food served at the eatery. Despite ample correlating evidence of unsanitary conditions at the restaurant, Minder still failed to satisfactorily attribute the cause of illness to food served and prepared at Cielito Lindo.

Pat and Dean Minder arrived at the Cielito Lindo Mexican restaurant on the afternoon of Sunday, December 17th, 1972. The couple ordered different combination plates with various assortments of Mexican cuisine.  Neither ate any other articles of food for the remainder of the day. Later on that evening Dean did experience some mild discomfort in his stomach, but no other symptoms. However, on December 20th, Dean experiencing persistent symptoms he left work early. Subsequently was hospitalized on December 26th. Dean’s wife Pat exhibited similar symptoms and was admitted to the hospital on the same day as her husband. The Minders were discharged from the hospital on January 2nd,1973.

The physician treating the Minders, Dr. McNamara, testified that he initially treated the couple for Influenza. After receiving confirmed lab results that the couple suffered from an infection engendered by Shigella Flexneri, Group B. Dr. McNamara concluded that the source of the bacterium was contaminated food. Upon cross-examination, the treating physician verified that contained food was not the only vehicle for transmitting Shigella. Surfaces touched by infected people and toilet seats also are potential sources of spreading Shigella. McNamara also admitted that he could not confirm whether Dean and Pat contracted the infection at the same time.


While Dr. McNamara’s testimony was far from airtight, there was a significant amount of circumstantial evidence against the restaurant.  Rodney Hiemstra of the Ventura County Environmental Health Department took the stand. Hiemstra stated that he inspected Cielito Lindo on October 27th, 1972. Detailed that the following was observed at the eatery:

“…dirt, grease, and food particles in the corners of the floor and behind the stove, which was in his opinion unsanitary and unhygienic. He testified to other unsanitary conditions that he observed and code violations, including an ice machine that was without a side panel, thus making the ice subject to contamination from dust and possibly flies. Further, the food storage area did not comply with the code in that the food was stored directly on the floor and not six inches above it.”

 Hiemstra revisited the establishment several times after the October 1972 inspection. He claimed to see improvements in the sanitation practices of the restaurant staff and owners. Hiemstra also collected stool samples from the employees of Cielito Lindo on January 26th, 1973. The lab results confirmed that none of the staff members working at the restaurant were infected with Shigella bacterium.

The plaintiffs were not the only individuals to become ill from dining at Cielito Lindo on December 17th, 1972. Etta Howell who was dining with the Minders also became sick. At the time Howell was pregnant and was experiencing diarrhea for approximately two weeks. Her doctor could not pinpoint the cause of her stomach ailment. Howell’s husband who also was dining with the Minder’s experienced no ill effects. Witnesses testifying on behalf of the restaurant claimed that the facilities were clean and no other people became sick from dining at Cielito. The owner even testified that there was only one other “inconclusive” complaint since the restaurant opened its doors in 1953.

The court’s decision was in favor of Cielito due to the lack of direct evidence implicating the eatery in the transmission of the Minder’s illness.  Past case precedence dictates that there needs to be direct evidence implicating the restaurant in the transmission of food-borne pathogens. Citing Williams v. Coca-Cola Bottling Company established that harm caused by merely ingesting contaminated food or beverages is not substantial enough to attribute liability to the producer. The accusing party needs to be able to prove causation. E.g.) the burrito that was prepared at Jimmy-Jo’s Taco Shack caused their illness. Anything else is “conjecture” based upon the Williams standard. The litigant and the witness confirming their account have not crossed the chasm between correlation and causation. Leaving room for a potential third-variable to be the cause of the victim’s condition. Per Williams, if there isn’t any outward evidence of the food being tainted, the victim must go a step further to verify causation.

The standard set forth by Williams is nothing more than a corollary of the adjudicatory assumptions implied in the decision in Franke’s, Inc V. Bennett. Illness alone is shallow evidence for attributing liability in food poisoning ligation.  Other cases have echoed this same sentiment. For example, Beaupre v. Nave. An incident dating back to the 1960s, where several regular patrons contract hepatitis from a California restaurant  (presumably hepatitis A per the symptoms described). In Minder, the court did not find the testimony of two health inspectors and the treating physician to be enough to prove liability on the part of the restaurant. Now, if the plaintiffs had taken home leftovers and had the remaining food tested for Shigella microbes. They might have a had solid case.

The courts must hold the standard of causation consistently when ruling on foodborne illness cases.  Without protection from frivolous lawsuits would be restaurant proprietors may choose to operate in a different industry. Diminishing the vibrant and diverse culinary landscape in America. Demanding that an eatery pay damages to every patron who develops stomach after eating there would be perverse incentives structure. Enticing customers to engage in litigious rent-extraction even when it is grossly inappropriate to do so. However, there is one Achilles heel in the standard of substantiating claims of food being deleterious that could use some adjustment. If a patron notices unhygienic food handling practices and still chooses to eat at the restaurant, they should not be awarded damages. Passively choosing to accept derelict care on the part of food handlers is a form of consent. Something as salient as a cockroach scurrying across the counter is a red flag. If a customer chooses to ignore this, regardless of food safety regulations, they have already surrendered their right to compensation. If a litigant was able to state that they notice that the silverware hadn’t been washed and still elected to eat at the establishment, they have already forfeited the right to seek damages.  Analogous to someone who in 2020 choosing to start smoking and already being aware of the health risks attempting to sue Philip Morris.

15 thoughts on “Minder v. Cielito Lindo Restaurant and The Burden of Proof- Food Poisoning

    1. Notice the relevance of Smith v Transit to the cases, like the Texas case that was just thrown out last night, challenging the results of the election in various States. Although there are some potential statistical anomalies, especially with the mail-in ballots, there apparently is no direct proof of voter fraud. I may habe to blog about this!!!

      Liked by 1 person

    2. I definitely will have to incorporate your findings in my analysis of Tort law.

      The whole food poisoning angle is just peculiar interest in my end. For a hot minute, I wanted to pursue micro-biology in college. Discovered the Marler Clark law firm ( the same people behind the 1993 Jack-In-The-Box cases)website.

      They actual provide more high level information about food borne pathogens than legal analysis on their website.

      I disagree with Bill Marler’s advocacy for food safety regulations . In even in a private law society, Tort law would remain. Making that aspect of his practice legitimate. Him getting onC-SPAN begging congress to improve safety standards is not.

      Liked by 1 person

        1. Don’t get me wrong: the concept of “Louisiana style” chicken appeals to me, as I have loved spicy foods ever since my study abroad days in Cuernavaca, Mexico (1989 to 1990), but that one experience at Popeye’s was so so bad that I decided to institute a personal “lifetime ban” on Popeyes!

          Liked by 1 person

        2. I am all for spicy food. But Popeye’s is flat out awful.

          Mexico is another location on my travel list. However, my wife refuses to go. Stating that it is too dangerous. Too bad, I live in a state that is literally on the Mexican border. It looks like where you studied is quite bit deeper into the country than the northern border.

          Either way even a visit to northern Mexico would be great in my book.

          Liked by 1 person

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