Chambley v. Apple Restaurants, Inc.

• Decision Date: 16 July 1998
• Docket Number: No. A98A0707.,A98A0707.
• Citation: 233 Ga. App. 498,504 S.E.2d 551
• Parties: CHAMBLEY et al. v. APPLE RESTAURANTS, INC.
• Court: Georgia Court of Appeals

504 S.E.2d 551

233 Ga. App. 498

CHAMBLEY et al. v. APPLE RESTAURANTS, INC.

No. A98A0707.

Court of Appeals of Georgia.

July 16, 1998.

York, McRae & York, Michael D. McRae, Robert T. Monroe, Cedartown, for appellants.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Kevin P. Race, Atlanta, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

The underlying case arose when Michelle Chambley was dining at a restaurant with her husband. While eating the Sante Fe chicken salad prepared on the premises by employees of Apple Restaurants, Inc. d/b/a Applebees ("Apple"), Chambley suddenly noticed an unwrapped condom mixed in with the other ingredients.¹ Chambley immediately reported the incident to the manager and hastily left with the remainder of the salad in a container. After arriving home, she became upset, repulsed, nauseated, and began experiencing emotional and physical problems. Chambley sought medical attention from Dr. Keith Parmer for gastric distress and other stomach disorders and later saw Dr. Richard Hark, a psychologist, to help her cope with panic attacks, depression and humiliation caused by the incident. Chambley sued Apple, the owner of the restaurant, for negligence and breach of implied warranty of merchantability. Her husband asserted a loss of consortium claim. Upon finding there was no physical injury resulting from impact with the condom, the trial court granted summary judgment on all counts. Held:

1. Chambley contends that she satisfied the requirements of the Georgia "impact" rule because she made physical contact with a salad contaminated by a condom and subsequently suffered a physical injury as a result of that impact.

Under the so-called "impact rule" in a claim concerning negligent conduct, "recovery for emotional distress is allowed only where there is some impact on the plaintiff and that impact must be a physical injury." Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992). Chambley asserts that a jury must determine whether she sustained the requisite "impact" and resulting physical injury which would allow her to recover damages from Apple for negligently serving her adulterated food that caused both physical and psychological injuries. See OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 665(2)(A), 386 S.E.2d 146 (1989). We agree.

This case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga.App. 241, 246, 76 S.E.2d 408 (1953), a case which closely parallels the facts here. In Whited, a consumer who drank part of beverage before discovering a dead bug inside his drink bottle did not have to prove actual contamination of his drink or actual physical contact with the dead bug to avert summary judgment. Id. at 248(2), 76 S.E.2d 408. See OCGA § 26-2-22.

This holding comports with the subsequently enacted Georgia Food Act (OCGA § 26-2-20 et seq.) in which the legislature plainly intended to protect Georgia consumers from defective, contaminated food products. See OCGA § 51-1-23. To effectuate that intent, the legislature adopted a broad definition of the term adulterated food which clearly reaches the facts here. "A food shall be deemed to be adulterated if: (1) it bears or contains any poisonous or deleterious substance which may render it injurious to health." OCGA § 26-2-26(1).

Chambley testified without contradiction that after she consumed part of the salad, she discovered an unwrapped condom and almost immediately experienced various digestive problems which necessitated medical treatment. Whether this salad was "adulterated" within the meaning of the statute is a disputed question of fact. Unlike the dissent, we refuse to unnecessarily weaken legislative protection of consumers so that restaurants who serve customers hidden, disgusting objects, as here, are protected as long as the customer does not actually eat the object or the object subsequently tests benign. To encourage restaurants to avoid their statutory duty to consumers by serving adulterated food in blatant violation of the Georgia Food Act, then allowing restaurants to escape liability because the consumer's physical reaction appears to have been psychological in origin simply cannot be the law. See Whited, 88 Ga.App. at 246, 76 S.E.2d 408. Therefore, we find that a jury must decide whether eating part of a salad containing a concealed, unwrapped condom is sufficient physical contact under the impact rule to permit recovery for damages. Similarly, a jury must determine whether Chambley's reaction of vomiting and becoming nauseated shortly after ingesting the salad constituted a physical injury within the meaning of our law. See OB-GYN Assoc., 259 Ga. at 668(2), 386 S.E.2d 146(C). Compare Posey v. Med. Center-West, 184 Ga.App. 404, 405, 361 S.E.2d 505 (1987) (impact rule precluded recovery against hospital by parents of child struck by vehicle); Ford v. Whipple, 225 Ga.App. 276, 483 S.E.2d 591 (1997) (impact rule foreclosed recovery by uninjured child passenger for fright and apprehension absent any physical injury). Notwithstanding the dissent's claim to the contrary, Ford is not "analogous," and neither requires nor authorizes a different result. In Ford, unlike here, the plaintiff expressly stated that she suffered no physical, psychological, or emotional injuries as a result of the defendant's wrongful conduct. Id.

Finally, we note that Apple offered no evidence that the salad was not at all times in the possession and control of the restaurant and its employees. Condoms do not just fall into salads, and the restaurant offered no explanation for its presence. Certainly the act here involved some intent, despite the fact that the plaintiffs do not allege any maliciousness. Had that issue reached a jury and a jury determined that the condom was intentionally or maliciously placed there by an employee, Chambley should have been able to recover for mental pain and suffering even absent a physical injury. Westview Cemetery v. Blanchard, 234 Ga. 540, 544(2)(B), 216 S.E.2d 776 (1975). See Ryckeley, 261 Ga. at 828, 412 S.E.2d 826.

2. In light of the above holding, we need not reach the remaining enumeration of error.

Judgment reversed. McMURRAY and Pope, P.JJ., and BLACKBURN, J., concur.

ELDRIDGE, J., concurs specially.

BEASLEY, J., concurs in part and dissents in part.

ANDREWS, C.J., dissents.

ELDRIDGE, Judge, concurring specially.

While I concur entirely with the majority, I feel that several factors should be further developed.

This action was brought under theories of negligence and warranty and not intentional tort, although the plaintiff could have brought the action as an intentional tort, because an unused but unwrapped condom does not accidentally become mixed in chicken salad and served up to a patron without an intentional act that was " malicious, wilful, or wanton." For purposes of damages, it is the nature of the conduct, i.e., malicious, wilful, or wanton, rather than the theory of recovery that authorizes the recovery of general damages for mental pain and suffering.

Mental pain and suffering are a form of general damages. OCGA §§ 51-12-1; 51-12-2(a); 51-12-6. In Westview Cemetery v. Blanchard, 234 Ga. 540, 543(2)(B), 216 S.E.2d 776 (1975), the Supreme Court stated: "[w]here there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying `mental pain and suffering' even though the tortious conduct complained of is merely negligent. [Cits.]" This was an action against a cemetery for intentional disinterment of a body without first obtaining authorization, and damages under OCGA § 51-12-6 (formerly Ga.Code Ann. 105-2003) were sought in addition to special damages. The Supreme Court went on to hold: "[i]f `mental pain and suffering' [are] not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was `malicious, wilful, or wanton.' Montega Corp. v. Hazelrigs, [229 Ga. 126, 189 S.E.2d 421 (1972)].... The Montega test for recovery for a purely mental injury is essentially the same as the test for recovery for `punitive damages.' See Standard Oil Co. v. Mt. Bethel, etc., Church, 230 Ga. 341, 196 S.E.2d 869 (1973)." Id. at 544-545, 216 S.E.2d 776. Accord Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992).

In OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 666(2)(A), 386 S.E.2d 146 (1989), the Supreme Court held: "[w]e take this opportunity to clarify our rule regarding impact and now hold that the impact which will support a claim for damages for emotional distress must result in a physical injury." Accord Ryckeley v. Callaway, supra at 828, 412 S.E.2d 826. "On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. [Cit.]" Id. "[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff." Id. at 829, 412 S.E.2d 826. However, in this case the intentional misconduct was directed at the plaintiff, as one of the small group of patrons ordering chicken salad, although the employee may or may not have known which customer would receive it.

BEASLEY, Judge, concurring in part and dissenting in part.

I concur with the judgment of reversal on the negligence and loss of consortium claims but disagree with the analysis of the majority, which misapprehends some issues of fact and law. I respectfully dissent from the reversal of summary judgment on the breach of warranty claim.

1. Regarding facts.

(a) The majority's closing comment that a jury would be authorized to determine the condom was intentionally or maliciously placed there by an employee is unsupported by the record. Chambley and her husband repeatedly represented in the court below that they did not allege any employee of defendant intentionally or maliciously put the condom in the salad; they simply claimed negligence, i.e.,...