Leo v. Waffle House, Inc.

• Decision Date: 09 July 2009
• Docket Number: No. A09A0332.,A09A0332.
• Citation: 298 Ga. App. 838,681 S.E.2d 258
• Parties: LEO v. WAFFLE HOUSE, INC.
• Court: Georgia Court of Appeals

681 S.E.2d 258

298 Ga. App. 838

LEO v. WAFFLE HOUSE, INC.

No. A09A0332.

Court of Appeals of Georgia.

July 9, 2009.

Slappey & Sadd, James N. Sadd, Atlanta, Meadows & Macie, Mary M. House, Stockbridge, for appellant.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, T. Shane Mayes, Marietta, Terry D. Jackson, Atlanta, for appellee.

DOYLE, Judge.

This appeal arises from a personal injury complaint filed by Rex Joseph Leo against Waffle House, Inc., in connection with injuries he sustained from drinking a concoction containing corrosive dishwasher detergent, which was prepared for Leo by a Waffle House employee, who dared Leo to drink the mixture. The Superior Court granted Waffle House's motion for summary judgment and Leo appeals, arguing that the trial court erred by granting Waffle House's motion for summary judgment because there were disputed issues of material fact as to whether (1)(a) the supervising employee's failure to intervene in the incident constituted negligence, and (b) the warning she gave was sufficient under the circumstances; (2) Waffle House was negligent in failing to supervise the store; and (3) the employee was acting within the scope of employment when he prepared the mixture and dared Leo to drink it. Because we cannot say as a matter of law that the supervising employee sufficiently fulfilled her duty to keep Leo safe or that her warning to him was sufficient under the circumstances, we reverse the trial court's grant of summary judgment and remand for further proceedings as to Leo's claim that she failed to intervene. In all other respects, we affirm the trial court's grant of summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

So viewed, the evidence presented showed that Leo was an invitee at a Waffle House restaurant on December 14, 2005, at around 3:30 or 4:00 a.m., drinking coffee along with three other customers. Leo was homeless at the time, and he was living behind a nearby convenience store. Quinton Wilson, who worked as a salesperson for Waffle House and was approximately 19 years old at the time of the incident, had come on duty at 2:30 a.m. to relieve another worker midway through her shift. In Waffle House restaurants, a salesperson is responsible for greeting customers, taking customers' orders, calling in orders to the grill operator, and serving drinks and food. Also on duty that night was Crystal Sparks, who was the grill operator for that shift and was the person considered to be in charge; no managers were at the restaurant when the incident occurred. Leo was a frequent customer of that Waffle House location and knew both Wilson and Sparks.

Wilson, Sparks, and the customers were joking around, and at one point, Wilson went behind the counter and mixed a concoction of juice, hot water, lemons, sugar, Ivory soap, and Score dishwashing detergent into a apple juice bottle he had purchased from a convenience store earlier that evening. Wilson approached Leo and told him the concoction was a milkshake and challenged Leo to drink it; when Leo initially declined, Wilson added that he would give the indigent Leo five dollars if he drank the concoction. Wilson did not think that the Score dishwashing detergent was any different than regular soap, and he believed it would simply taste bad.

At that point, Sparks walked by Leo and stated, "I wouldn't drink that, Leo, if I were you, but I'm not getting involved." Nevertheless, Leo, who was not aware of the contents of the concoction and who did not think that Wilson would do anything to harm him, drank the mixture, and he collapsed on the floor and began foaming at the mouth. Wilson called 911, and Leo was taken to the hospital for internal injuries from the corrosive dishwasher detergent.²

Leo filed the instant personal injury complaint against Waffle House, alleging liability on the part of Waffle House for the negligence of employee Wilson, as well as negligent supervision.³ Leo later amended his complaint to add a claim of failure to intervene on the part of Waffle House because Sparks, who was the employee in charge of the restaurant at the time of the incident, knew about the contents of the drink, but did not stop Leo from consuming it. Waffle House filed a motion for summary judgment, which the trial court granted.

1. First, Leo argues that the trial court erred by granting summary judgment to Waffle House because issues of material fact existed as to whether Sparks's failure to intervene constituted negligence on the part of Waffle House.

The proprietor of a business has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct. The duty is defined by the law; the breach of that duty is determined by the particular facts. This is usually a question to be referred to the jury, and should always be so referred, unless the allegations (or evidence) show beyond controversy that there was no such breach of duty. When the conduct of persons on the premises is such that the proprietor from known facts or circumstances should reasonably apprehend danger to other customers, it is his duty to interfere to prevent injury, and the failure to interfere when the proprietor has an opportunity to foresee and prevent injury may constitute negligence.⁴

Viewing the facts in the light most favorable to Leo, Crystal Sparks knew that Wilson had mixed the concoction using dishwasher detergent. Thus, Sparks had superior knowledge of the risk because Leo was not aware of the contents of the drink.⁵ It is a matter for the jury to decide whether Sparks's warning to Leo was sufficient to fulfill Waffle House's duty to keep its customers safe.⁶ Furthermore, we find unpersuasive Waffle House's argument that Leo's decision to drink the concoction leads to the conclusion that Sparks's failure to intervene was not the proximate cause of Leo's injuries.⁷ Properly viewed, the evidence shows that he had no knowledge that the concoction contained dishwasher detergent, and even if Wilson's dare and offer of five dollars put him on notice that the drink was somehow tainted, it does not follow that an offer of five dollars in exchange for drinking the substance would put a reasonable person on notice that his life was in danger if he accepted the challenge.

"Under the existing state of the record, this is a case where a jury must rule on the question of negligence and diligence. What a reasonable and prudent man under similar circumstances could and would have done in the exercise of ordinary care for the protection of appell[ant] is for a jury to answer."⁸ Therefore, the trial court's grant of summary judgment as to this claim is reversed.

2. Next, Leo argues that the trial court erred by granting summary judgment to Waffle House because issues of material fact existed as to whether Waffle House provided supervision of the restaurant employees at the time of the incident.

"[A]n employer may be held liable [for negligent supervision] only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee's tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff."⁹ Thus, the trial court correctly granted summary judgment on Leo's claim of negligent supervision because the record is devoid of evidence that Waffle House knew or should have known that Wilson had engaged in such reckless behavior previously or that Wilson had ever engaged in such behavior before.

3. Finally, Leo argues that the trial court erred by granting summary judgment to Waffle House because issues of material fact existed as to whether Wilson's act of mixing and serving the drink fell within the scope of his employment.

Two elements must be present to render a master liable for his servant's actions under respondeat superior: first, the servant must be in furtherance of the master's business; and, second, he must be acting within the scope of his master's business. If a tort is committed by an employee not by reason...