(CN) - The family of a man who died after choking on a free steak sample at a San Francisco Costco can proceed with negligence claims after a federal judge denied the retailer's motion for summary judgment.
Robert Jean Harris died after choking on a piece of tri-tip steak handed out as a free sample at a Costco food table in 2010.
His family sued the company in California's Northern District and later amended the complaint to add Warehouse Demo Services (WDS), the company that ran the food sample table.
On the day Harris choked, WDS employee Deanna Gehrett was running the sample table, and she said Harris "approached her in distress."
"When Harris approached Gehrett, he did not speak, but pointed to his neck and chest, leading her to believe that he was either choking or having a heart attack," according to the court's background summary.
An off-duty firefighter who was shopping at Costco tried the Heimlich maneuver on Harris, but was unable to dislodge the piece of steak.
"Gehrett testified that she had not seen Harris before he approached her, and estimated that hundreds of tri-tip samples had been served that day. Bystander Paula Ponce, however, testified that she heard Gehrett screaming that Harris was choking on a piece of steak," the summary says.
An emergency room physician testifying for Harris' family gave the opinion that if the steak had been cut smaller, he would have been less likely to have choked, and the Heimlich maneuver would have worked.
Costco and Warehouse Demo moved for summary judgment, arguing that they did not owe a duty to exercise reasonable care in serving the steak to customers.
The Court rejected this argument in ruling on the defendants' motion to dismiss last September, and found that a reasonable jury could rely on an industry standard for the size of steak samples.
In a 12-page order Wednesday, District Judge Claudia Wilken rejected the defendants' argument that there was no evidence that Harris had actually eaten one of the steak samples that WDS prepared.
The judge found that Harris' family presented enough evidence and expert testimony for a reasonable jury to find that the meat Harris choked on was too large.
A witness testified that "the piece of tri-tip that he had sampled was larger than usual and that the meat extracted from Harris was approximately one inch by three inches."
"This is evidence that the meat that Harris choked on was larger than the sample size that WDS employees were instructed to prepare," Judge Wilken wrote.
Costco and WDS also argued that they could not be held responsible for Harris' choking death because he should have chewed the meat.
Judge Wilken rejected this argument, ruling that the companies cannot use contributory negligence as a complete defense.
The California Supreme Court adopted comparative, rather than contributory negligence, as a way to assess liability, the judge found.
Costco moved for summary judgment on the plaintiffs' negligent hiring and negligent supervision claims, which were not opposed. The judge found for Costco on those claims, as well as for Costco's cross-claim against WDS for express indemnity.
An eight day jury trial is scheduled to begin on June 4.
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