When you sit down for dinner at a restaurant, you trust that the business is taking reasonable steps to keep you safe. Most people think about slippery floors or undercooked food. But what happens when the danger is a visibly sick employee who keeps working while serving customers?
That question sits at the heart of a Florida negligence dispute involving two diners who say they caught tuberculosis after eating at the same upscale restaurant, where a server had been coughing for months. A trial court threw the case out before trial. An appeals court took a closer look at how the law defines a business’s responsibility.
The decision matters to anyone trying to understand when a business can be held to answer for harm connected to its premises, and how much a court is allowed to decide on paper before a jury ever hears the evidence.
This post explains the ruling in Massaua v. Cervelli, a recent decision from Florida’s Second District Court of Appeal.
Key Takeaway
A business’s duty to keep customers safe can be triggered by a foreseeable general risk of harm — here, a visibly and persistently sick employee — not only by proof that the business knew the exact disease involved.
The question is more specific:
- Did the business know, or should it reasonably have known, that the server was contagious?
- Did the trial court define the business’s responsibility too narrowly?
- Did the trial court improperly weigh conflicting testimony instead of leaving it for a jury?
What happened at the restaurant?
Two customers dined independently at an upscale restaurant in late 2016, where a server worked despite what witnesses described as a heavy cough that lasted for weeks. The server had sought treatment for flu-like symptoms starting in late September 2016 and was eventually diagnosed with tuberculosis in March 2017. Both diners were later diagnosed with tuberculosis.
A coworker testified that the server was clearly unhealthy, complained of not feeling well, and appeared sickly for weeks, and that the restaurant’s staff was small. The manager testified that the server did not appear sick to him and that he would not have kept an employee he knew had tuberculosis.
The diners sued the manager, the corporate owner, and the server, claiming the defendants knew or reasonably should have known the server was very sick and likely contagious yet allowed him to keep interacting with customers and their food.
What did the trial court decide, and why was that questioned?
The trial court granted summary judgment for the defendants, meaning it ended the case before trial. It reasoned that the plaintiffs had not shown the restaurant knew or should have known the server had tuberculosis specifically, concluding that, at most, the evidence showed cold or flu symptoms.
On appeal, the diners did not challenge the judgment in favor of the individual server, so the appeals court affirmed the outcome as to him. But the court reversed as to the manager and the corporate owner, finding that genuine factual disputes existed and that the case should not have ended on paper.
How does the law define a business’s duty here?
Under Florida law, businesses owe their customers, as invitees, a duty of reasonable care to maintain safe conditions and to warn of concealed dangers the business knows or should know about. In premises cases, that generally requires the business to have had actual or constructive notice of the dangerous condition.
Actual knowledge means the business or its agent actually knew of, or created, the danger. Constructive knowledge can be inferred when a dangerous condition existed long enough that, with ordinary care, the business should have discovered and addressed it. The appeals court agreed there was no evidence of actual knowledge, but it found evidence from which a jury could infer constructive knowledge, given a conspicuous respiratory illness that lasted nearly three months in a small-staffed restaurant.
Duty versus proximate cause
Florida courts treat foreseeability as relevant to two different questions. Duty asks whether conduct created a broader “zone of risk” — a general threat of harm to others. Proximate cause is more specific and asks whether the particular injury was foreseeable. The appeals court found the trial court blurred these two questions together.
Why did the court say the duty was defined too narrowly?
The appeals court explained that the key question was not whether the restaurant knew the server had tuberculosis specifically, but whether it knew or should have known he was infected with a contagious disease. Because the duty focuses on the general zone of risk, the court reasoned that a visibly and persistently ill employee interacting with customers and food created a foreseeable general threat of harm.
The court pointed to a food-service administrative rule as an illustration — not as a private cause of action — reinforcing that an employee affected with any communicable disease can create a broad risk to others. In the court’s view, defining the danger as narrowly as “tuberculosis specifically” merged the separate questions of duty and proximate cause.
What did the court say about proximate cause and weighing evidence?
The appeals court emphasized that at the summary judgment stage the moving party — here, the defendants — carries the initial burden of showing there is no genuine dispute of material fact. Until that burden is met, the other side need not prove anything. The court found the trial court applied the wrong standard by requiring the plaintiffs to create a factual issue prematurely.
On proximate cause, the court noted that foreseeability of causation is usually a question for the jury, and a judge may take it away only where the evidence supports a single reasonable inference. Testimony about the server’s months-long cough, coworker observations, and an epidemiologist’s affidavit created a genuine factual dispute about whether the harm was foreseeable.
The court also concluded the trial court improperly weighed evidence — resolving conflicts in a coworker’s testimony, reinterpreting a witness’s clarified timeline, and discounting the expert affidavit, in part by referencing medical records that were not even in the record. Weighing evidence and judging credibility are jury functions, not tasks for a judge deciding summary judgment.
Why does this matter to restaurant customers and the public?
This decision explains, in general terms, how Florida courts frame a business’s duty to protect customers from foreseeable harms and how carefully courts must avoid deciding disputed facts before trial. It clarifies that the relevant question can be whether a business should have recognized a general risk, not whether it identified a precise diagnosis.
It also underscores a broader procedural point: summary judgment is meant to test whether real factual disputes exist, not to resolve them. Where reasonable people could reach different conclusions from the evidence, those questions are generally left for a jury.
Disclaimer: This post is for general information only, is not legal advice, does not create an attorney-client relationship, and does not predict or guarantee any result. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before deciding, ask for free written information about the lawyer’s qualifications and experience.