Barnett v. Leiserv, Inc.

• Decision Date: 31 March 1997
• Docket Number: Civil Action No. 1:95-CV-2588-JOF.
• Citation: 968 F.Supp. 690
• Parties: Derrick BARNETT, as Natural Parent and Guardian of Derrian J. Barnett, Plaintiff, v. LEISERV, INC., d/b/a Circus World Pizza, Defendant, v. ROYAL CUP, INC., and Frankie Roberts, Third-Party Plaintiff.
• Court: U.S. District Court — Northern District of Georgia

968 F.Supp. 690

Derrick BARNETT, as Natural Parent and Guardian of Derrian J. Barnett, Plaintiff, v. LEISERV, INC., d/b/a Circus World Pizza, Defendant, v. ROYAL CUP, INC., and Frankie Roberts, Third-Party Plaintiff.

Civil Action No. 1:95-CV-2588-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

March 31, 1997.

Thomas F. Jones, Kimberly Miree Washington, Atlanta, GA, for Derrick Barnett.

Ronald Luis Reid, James W. Hagan, Alston & Bird, Atlanta, GA, for Leiserv, Inc.

Arthur H. Glaser, Drew Eckl & Franham, Atlanta, GA, Phillip Edward Friduss, Sullivan Hall Booth & Smith, Atlanta, GA, for Royal Cup, Inc.

Frederick Mills Valz, III, Webb Carlock Copeland Semler & Stair, Atlanta, GA, for Frankie Roberts.

ORDER

FORRESTER, District Judge.

This products liability action is before the court on Defendant's motion for summary judgment [19-1] and the motion of counsel for Plaintiff to withdraw [18-1].

I. STATEMENT OF CASE

A. Procedural History

Plaintiff Derrick Barnett commenced this action in his capacity as natural parent and guardian of his son Derrian J. Barnett against Defendant Leiserv, Inc., d/b/a Circus World Pizza in the State Court of Fulton County, Georgia, on or about September 6, 1995. Based upon an accident in which a hot cup of coffee was spilled on Derrian, Plaintiff sets forth three causes of action under Georgia law: (1) strict liability for defectively manufactured coffee under the provisions of § 402A of the Restatement (Second) of Torts, (2) breach of implied warranty of merchantability, and (3) breach of implied warranty of fitness for particular purpose. Furthermore, Plaintiff is seeking punitive damages. After removing the action to United States District Court in the Northern District of Georgia based upon diversity jurisdiction, Defendant Leiserv, Inc., filed a third-party complaint against Defendant Royal Cup, Inc., and Frankie Roberts seeking full indemnification for attorneys' fees and sums paid pursuant to settlement or judgment on Plaintiff's claims.

On May 20, 1996, approximately one week after the close of discovery, Thomas J. Jones, who has represented Plaintiff through the duration of this litigation, moved to withdraw as counsel [18-1]. Defendant Leiserv subsequently filed a motion for summary judgment [19-1]. The third-party defendants both have indicated to the court that they do not oppose the summary judgment motion [23-1, 25-1]. In a letter dated June 7, 1996, Mr. Barnett outlined his difficulties in obtaining new counsel after Mr. Jones notified him of his intent to withdraw, voiced concern about his immediate need to respond to the pending summary judgment motion, and requested that this court deny the motion to withdraw. Mr. Jones, however, did file on behalf a Plaintiff a brief in opposition to Defendant's summary judgment, a response to Defendant's Statement of Undisputed Facts, and Plaintiff's affidavit prepared after Plaintiff's letter [24-1].

B. Statement of Undisputed Facts¹

1. The Accident

On March 4, 1995, Plaintiff Derrick Barnett and his wife Jassundra Barnett ("Mr. and Mrs. Barnett") brought their five children to Circus World Pizza in Duluth, Georgia, in honor of their son Derrian's third birthday. At Circus World, Frankie and Inez Roberts and their two children joined the Barnetts' celebration. Frank Roberts ("Mr. Roberts") is Derrian's godfather. Six of the seven children present at the birthday party were five-years-old or younger. Aaron Byrd, a teenage friend of the two families, also came to the birthday party.

When the Barnetts arrived, Mr. Roberts was already at Circus World and was in the midst of drinking a cup of coffee that he had purchased at the concession stand. Mr. Roberts has indicated that he did not experience any problems with the temperature of that cup of coffee. The children initially played while the adults were assembled in a separate area set aside for dining at Circus World. After Mrs. Barnett prepared one of the long picnic-style bench tables, the seven children joined the adults at the table in order to eat pizza and cake and to celebrate Derrian's birthday. Afterwards, both Mr. Roberts' daughter and Derrian climbed up into Mr. Roberts' lap. Mr. Roberts then gave money to Aaron to buy a second cup of coffee for him. Despite the fact that children were running around and Derrian was in his lap, Mr. Roberts did not take any precautions against spilling the coffee.

Mr. Roberts had his left arm around Derrian who sat "close to the table" on Mr. Roberts' left knee. On the opposite side of the table, Mr. Barnett sat directly across from Derrian and Mr. Roberts while Mrs. Barnett stood to her husband's side. The adults talked as Mrs. Barnett cleaned the table. Mr. Barnett has admitted that he was not paying attention to Derrian. Yet, a number of drink cups were left within Derrian's reach on the table.

Both Mr. Barnett and Mr. Roberts had spilled coffee upon themselves in the past and were aware that hot coffee could burn. Furthermore, the Barnetts understood that children were more susceptible to burns from hot liquids than adults might be. Mr. Roberts and the Barnetts also knew that children have a tendency to grab cups. Mr. Roberts even admitted that Mr. Barnett had once told him that Derrian had such a tendency.

Upon returning to the area, however, Aaron set the cup of coffee that he bought for Mr. Roberts on the table in front of Mr. Roberts and six inches to one foot from the table's edge. Circus World had not provided any warnings regarding the brewing or holding temperature of the coffee served or the potential danger arising from the coffee.² Mr. Roberts and the Barnetts noticed that the coffee cup was within Derrian's reach. Mr. Barnett also saw steam rising from the cup and knew the cup of coffee was hot.³ Neither parent told Mr. Roberts to be careful or took any other precautions to protect Derrian from the hot coffee. With Derrian still sitting on his left knee, Mr. Roberts used both of his hands to open a sugar packet. At this point, the coffee tipped over and spilled on Derrian's leg and foot. In light of the admitted fact that no Circus World employee was involved in spilling the coffee,⁴ either Mr. Roberts or Derrian was responsible for spilling the coffee. Mr. and Mrs. Barnett have testified that Derrian suffered second degree burns on his right ankle, leg and foot, which healed within a few weeks after the accident.

2. The Coffee Maker

The "brewing temperature" for a coffee maker is the temperature at which water and coffee grinds are blended together to brew the coffee. A proper brewing temperature is necessary to guarantee an exact extraction of flavor from the coffee grinds. The standard brewing temperature for coffee makers in the coffee service industry, including the Bunn Omatic STS F-15 model, ranges from 195 to 205 degrees Fahrenheit. The "holding temperature" for a coffee maker is the temperature of the coffee after brewing and before serving. As with the brewing temperature, a proper holding temperature is required in order to maintain the quality of the taste of the coffee. The standard holding temperature for coffee makers in the coffee service industry, including the Bunn Omatic STS F-15 that was involved in the accident, ranges from 175 to 185 degrees Fahrenheit. Third-party Defendant Royal Cup, Inc. [hereinafter "Royal Cup"], has a policy of maintaining its brewing and holding temperatures of the coffee makers that Royal Cup services within the above-referenced standard temperatures.

A few days before Circus World came into operation in October 1994, its manager leased a Bunn Omatic STS F-15 coffee maker from Royal Cup. As part of the arrangement, Circus World used the ground coffee beans and coffee filters that Royal Cup supplied. In addition, a Royal Cup representative instructed the Circus World manager, who in turn trained the employees, about how to prepare and blend the coffee in the coffee maker. At the time Royal Cup delivered the coffee maker to Circus World, a Royal Cup representative set the brewing temperature so that it was in the 195 to 205 degree range. The representative also tested and determined that the holding temperature of the coffee maker was within the 175 to 185 degree range. Circus World employees did not have access to any mechanisms to adjust these temperatures.

All of the coffee that Circus World sold to its patrons came from this Royal Cup coffee maker and was made according to the company's specifications. In addition, a Royal Cup representative tested the coffee maker no longer than three days after Derrian's accident and determined that the coffee maker was brewing and holding coffee in accordance with Royal Cup's standard temperatures. A Circus World manager, who had drank coffee from the coffee maker at issue every day that she had been on duty during her employment, testified that every cup of coffee she had consumed there had been brewed and held at the same respective temperatures and did not increase in temperature on or after March 4, 1995. Finally, Circus World had not received any complaints regarding the temperature of its coffee or had any notice of an occasion on which a customer had been burned after spilling its coffee prior to Derrian's accident on March 4, 1995.

II. DISCUSSION

A. Motion to Withdraw

The court appreciates Plaintiff's possible concerns about whether his counsel might put forth his best efforts after notifying Plaintiff of his intent to withdraw as counsel. Yet, as the materials that his counsel prepared and submitted in opposition to Defendant's motion for summary judgment were not patently frivolous, the court has considered the merits of those responses. Because the record indicates that attorney Thomas J. Jones has substantially complied with the requirements of Local Rule 110-5, this court GRANTS his motion to withdraw as counsel for Plaintiff [18-1].

B. Motion for Summary Judgment

Plaintiff's...