Background
George Massaua and Stephanie Allen, dining at Casa Ludovico restaurant in late 2016, each contracted tuberculosis. They alleged the disease came from Marcus Adrian Visoiu, a server working at the restaurant at that time. Visoiu was diagnosed with TB in March 2017 after months of flu-like symptoms and heavy coughing. Massaua and Allen sued Carmine Cervelli (the restaurant’s part-owner and manager) and Umberto’s of Palm Harbor, Inc. (the operating company), claiming the defendants knew or should have known Visoiu was seriously ill and failed to prevent him from exposing customers to his contagious disease.
The trial court granted summary judgment against Massaua and Allen, finding insufficient evidence that the defendants knew Visoiu had TB specifically. The court concluded that even if Visoiu had a “heavy cough,” this indicated only a cold or flu, not TB, and therefore the defendants lacked actual or constructive knowledge of the dangerous condition. The court also found no genuine issue of material fact regarding whether the plaintiffs contracted TB at the restaurant.
The Court’s Holding
The Second District Court of Appeal reversed summary judgment as to Cervelli and Umberto’s. The appellate court held that the trial court applied the duty element too narrowly by requiring defendants to have known Visoiu was infected with TB specifically, rather than any contagious disease. The correct legal question is whether Cervelli and Umberto’s knew or reasonably should have known that Visoiu was infected with a contagious infectious illness—not TB in particular.
The court found sufficient evidence of constructive knowledge from which a jury could find liability. Testimony established that Visoiu had a visible, heavy cough for over three months continuously while working at Casa Ludovico, appeared plainly unhealthy to coworkers, and complained of feeling sick. Under the foreseeability standard, this evidence creates a zone of foreseeable risk to customers. A restaurant owes a duty to restaurant patrons as business invitees to maintain safe conditions and warn of concealed dangers. A contagious employee working with food and direct customer contact creates a generalized and foreseeable risk of harm.
Regarding proximate cause, the court found Dr. Kunchok Dorjee’s expert affidavit, based on epidemiological analysis and TB progression timelines, created a genuine factual dispute. Dorjee opined within reasonable medical certainty that Massaua and Allen contracted TB from exposure to Visoiu at Casa Ludovico. The trial court impermissibly weighed conflicting evidence and witness credibility—jury functions—in reaching its summary judgment determination.
Key Takeaways
- A restaurant’s duty to prevent contagious disease transmission is triggered by knowledge of any infectious illness, not a specific diagnosis.
- Constructive knowledge can be inferred when an employee’s visible symptoms of serious illness persist long enough that ordinary care would have revealed them.
- Expert medical testimony regarding disease transmission timelines can create a genuine factual dispute on proximate causation suitable for jury resolution.
- Summary judgment is improper when courts weigh conflicting evidence, assess witness credibility, or rely on evidence outside the record.
Why It Matters
This decision clarifies restaurant operators’ liability for employee illnesses in premises liability cases. The ruling rejects a narrow interpretation requiring employers to diagnose specific diseases before taking protective action. Instead, reasonable business operators owe a duty to act when they observe or should observe that an employee is visibly, noticeably sick—regardless of the specific diagnosis. This has practical implications: a server’s obvious respiratory illness lasting weeks creates legal exposure even if the precise pathogen is unknown. The court’s emphasis on foreseeability of harm from a contagious employee working with food and customers establishes a broader zone of protection for patrons than the trial court recognized.
The reversal also reinforces procedural protections at summary judgment. Courts cannot resolve factual conflicts or assess credibility determinations when deciding motions for summary judgment; those are exclusively jury functions. Expert medical opinions about disease transmission, even if challenged by opposing evidence, typically create genuine fact disputes requiring jury resolution rather than judicial dismissal.