Wilson v. J & L MELTON, INC.

• Decision Date: 07 October 2004
• Docket Number: No. A04A1725.,A04A1725.
• Citation: 606 S.E.2d 47,270 Ga. App. 1
• Parties: WILSON v. J & L MELTON, INC.
• Court: Georgia Court of Appeals

606 S.E.2d 47

270 Ga. App. 1

WILSON v. J & L MELTON, INC.

No. A04A1725.

Court of Appeals of Georgia.

October 7, 2004.

Lisa D. Wright, Atlanta, for appellant.

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Douglas K. Burrell, Atlanta, for appellee.

ELDRIDGE, Judge.

Appellant-plaintiff Luenell Wilson brought the instant complaint for damages for emotional distress against appellee-defendant J & L Melton, Inc. d/b/a McDonald's Restaurant (the "Restaurant"), averring negligence, negligence per se, and breach of the implied warranty of merchantability under OCGA §§ 51-1-23, 26-2-20, and 11-2-314 and 11-2-715(2)(b), respectively, for selling her french fries contaminated by blood. Further, Wilson sought bad faith attorney fees under OCGA § 13-6-11 because the Restaurant allowed its "fry man" to continue serving french fries knowing that he cut himself regularly. The Restaurant moved to dismiss for spoliation of the evidence, or, in the alternative, for summary judgment, pertinently arguing that the only alleged damage supported by the record was emotional distress in Wilson stemming from the fear that she had been exposed to HIV or hepatitis. Contending that genuine issues of material fact remain, but without addressing the foregoing argument, Wilson challenges the grants of summary judgment for the Restaurant. Finding no evidence which shows that Wilson was exposed to HIV or hepatitis and that her claim under OCGA § 13-6-11 for stubborn litigiousness was not raised and ruled upon in the trial court, we disagree and affirm.

"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). Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997)." (Punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555, 588 S.E.2d 441 (2003). However, "[i]f the defendant is successful in piercing plaintiff's pleadings with regard to one essential element, the defendant is entitled to summary judgment regardless of whether issues of fact remain with regard to the other elements." Grant v. Perimeter Mall Mgmt. Corp., 215 Ga.App. 652, 653, 452 S.E.2d 153 (1994). On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000).

Viewed in a light most favorable to nonmovant Wilson, the record shows that on October 9, 2002, Wilson ordered a Quarter Pounder Combo Meal for lunch at the Restaurant's drive-thru window. Wilson deposed that she began eating the french fries included in the meal as she drove away and, when looking down at a stop sign, noticed what she believed to be two blood spots on the inner side of the fries container. Although she had seen nothing out of the ordinary on the french fries she had eaten, Wilson vomited, and feeling nauseous, returned to the Restaurant and confronted on-duty manager Tonya Williams with the french fries container.

Williams believed the spotting which Wilson called to her attention to be red ink; nonetheless, she checked fry man Luiz Mendoza and found that he had a cut on his hand with "a little blood on it." Later, at Wilson's request, Williams wrote a note stating that "a customer had some blood in her fry box." Subsequent testing by the Laboratory Corporation of America, at Wilson's behest, showed the two spots at issue to be consistent with male blood. Testing, however, consumed the entire sample, foreclosing testing to confirm the presence of blood by the Restaurant.

Since the time of the accident, Wilson's blood has consistently tested negative for blood-borne pathogens, including HIV and hepatitis. However, she continues in counseling begun shortly after the incident at the Clayton County Mental Health Center for panic attacks and inability to sleep arising out of fear of contracting a disease as a result of eating contaminated food. Held:

1. That the superior court granted the Restaurant summary judgment upon Wilson's negligence claims was proper in that the record shows that Wilson failed to support her alleged damages for emotional distress by evidence of more than her "fear" that she had been exposed to HIV or hepatitis. "To allow recovery for emotional injuries and mental anguish, without any proof whatsoever that [the plaintiff] was actually exposed to HIV or hepatitis is per se unreasonable." (Emphasis supplied.) Russaw v. Martin, 221 Ga.App. 683, 686(1), 472 S.E.2d 508 (1996); Johnson v. American Nat. Red Cross, 253 Ga.App. 587, 592(2), 569 S.E.2d 242 (2002). Because Wilson was unable to meet this requirement, no error obtained upon the grant of summary judgment on her negligence claims¹ against the Restaurant. Grant v. Perimeter Mall Mgmt. Corp., supra.

2. Wilson last contends that the superior court erred in granting the Restaurant summary judgment on her claim for attorney fees under OCGA § 13-6-11 for stubborn litigiousness. However, the record shows that Wilson sought the award of OCGA § 13-6-11 attorney fees against the Restaurant before the superior court, not on the basis of stubborn litigiousness, but for bad faith in the Restaurant because it knowingly allowed its french fries to be served by an employee with a record for repeatedly cutting himself. "Where there is nothing in the record to support a contention of error, there is nothing to review." (Citation and punctuation omitted.) Belcher v. Folsom, 258 Ga.App. 191, 192-193, 573 S.E.2d 447 (2002). In any event, with no evidence of bad faith of record, see Atlanta Journal Co. v. Doyal, 82 Ga.App. 321, 336(5), 60 S.E.2d 802 (1950) (attorney fees for bad faith in actions sounding tort refers to intentional rather than negligent conduct in...