Patterson v. Kevon, LLC

• Decision Date: 20 August 2018
• Docket Number: S17G1957
• Citation: 304 Ga. 232,818 S.E.2d 575
• Parties: PATTERSON et al. v. KEVON, LLC d/b/a Big Kev’s Barbecue.
• Court: Georgia Supreme Court

304 Ga. 232

818 S.E.2d 575

PATTERSON et al.

v.KEVON, LLC d/b/a Big Kev’s Barbecue.

S17G1957

Supreme Court of Georgia.

Decided: August 20, 2018

Blakely Holloway Frye, Travis M. Cashbaugh, HILL, KERTSCHER & WHARTON, LLP, 3350 Riverwood Parkway, Suite 800, Atlanta, Georgia 30339, for Appellant.

John David Hadden, THE HADDEN LAW FIRM, LLC, 44 Broad Street, Suite 600, Atlanta, Georgia 30303, Allison Elmore Thornton, GEORGIA TRIAL LAWYERS ASSOCIATION, 3350 Centennial Tower, 101 Marietta Street, Atlanta, Georgia 30303, for Amicus Appellant.

Pamela Newsom Lee, David Anthony Smith, SWIFT, CURRIE, MCGHEE & HIERS LLP, 1355 Peachtree Street, NE, Suite 300, Atlanta, Georgia 30309, for Appellee.

Boggs, Justice.

We granted this petition for certiorari to consider whether summary judgment for the defendant was properly granted in this food poisoning case. In Patterson v. Kevon, LLC, 342 Ga. App. 256, 802 S.E.2d 442 (2017), a sharply divided Court of Appeals affirmed the trial court’s grant of summary judgment to the defendant caterer on the issue of proximate cause.¹ For the reasons stated below, we find that the standard that has developed over the years in the Court of Appeals has conflated cases at both the trial and summary judgment stages, thus creating the mistaken impression that food poisoning cases "are a unique species of negligence cases" imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment. Id. at 259, 802 S.E.2d 442. The appropriate legal standard on summary judgment, correctly applied to the facts of this case, shows that the trial court erred in granting summary judgment on the issue of proximate cause. We therefore reverse the decision of the Court of Appeals.²

The facts are recited at some length in the Court of Appeals opinion. To summarize, Joshua and Taylor Patterson became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. The Pattersons brought this action for negligence, violation of the Georgia Food Act ( OCGA § 26-2-20 et seq. ), and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, undercooked, and negligently prepared.

After limited discovery, Big Kev’s moved for summary judgment, asserting that the Pattersons "are unable to show that their alleged food poisoning was proximately caused by Defendant." In support of their argument, Big Kev’s asserted that the Pattersons also consumed items prepared by others at the rehearsal dinner, such as dessert or alcohol, as well as improperly stored leftovers from the rehearsal dinner and food at the wedding reception the following day. In addition, Big Kev’s pointed to evidence that the Pattersons ate other meals, including fast food, and drove to Florida before Mr. Patterson began to feel ill, three days after the rehearsal dinner, and that Mrs. Patterson did not begin to feel ill until several days later. Big Kev’s asserted that the owners of the event venue, their employees, and other guests who consumed the food did not become ill. Big Kev’s owner also testified to his procedures in receiving, cooking, and serving the food.

In response, the Pattersons pointed to the deposition testimony of several witnesses who became ill with similar symptoms after eating Big Kev’s food at the rehearsal dinner. Mr. Patterson tested positive for salmonella, and a guest at the rehearsal dinner, who ate Big Kev’s meal but did not consume food at the wedding reception, also tested positive for salmonella. Three other guests testified that they became ill at around the same time after eating at the rehearsal dinner. Mr. Patterson testified that four other people who became ill, including Mrs. Patterson, did not eat at the wedding reception. Other guests who became ill testified that they did not consume dessert, drinks, or leftovers. Testimony was presented that as many as 16 to 20 people became ill after the dinner. Counsel for the Pattersons noted this testimony, adding, "but that’s, at this point, hearsay and, you know, we have not been able to track down everybody."³ The Pattersons asserted that the evidence creates an issue of fact with respect to causation, and that this is sufficient for their claims to survive summary judgment. They argued that the issue of causation, like that of negligence, is ultimately for the jury.

The trial court granted summary judgment, holding that the Pattersons had failed to exclude every other reasonable hypothesis regarding the cause of their illness, relying on a number of food poisoning cases decided by the Georgia Court of Appeals.⁴ The Pattersons appealed to the Court of Appeals, which affirmed by a whole court vote of 5-4. The majority there held that, while a plaintiff may prevail in a food poisoning case by establishing that the food was defective or unwholesome, in the absence of direct evidence that the food was contaminated, a plaintiff’s circumstantial evidence must exclude every other reasonable hypothesis as to the cause of the plaintiff’s illness. The majority noted that this is a "heavy burden," and asserted that

suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries.

(Citations and footnote omitted.) 342 Ga. App. at 259-260, 802 S.E.2d 442. Accordingly, the Court of Appeals affirmed the grant of summary judgment to Big Kev’s. Two vigorous dissents catalogued the evidence supporting the Pattersons’ claims and pointed out that the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment. This Court granted the Pattersons’ petition for writ of certiorari.

The law governing the parties’ respective burdens on summary judgment is well established. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). In Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), this Court set out the general rule with regard to a defendant’s motion for summary judgment. A defendant may prevail

by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Id. at 491, 405 S.E.2d 474. We review a grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmovants and drawing every reasonable inference in their favor. McBee v. Aspire at West Midtown Apts., L.P., 302 Ga. 662, 662-663 (1), 807 S.E.2d 455 (2017). Under the evidence presented here, construed as required by law, this appeal is resolved by the well-established rules governing circumstantial and direct evidence on summary judgment.

"Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed." Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 232, 367 S.E.2d 539 (1988). Generally, "[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists." (Citations and punctuation omitted). Haley v. Regions Bank, 277 Ga. 85, 89 (1), 586 S.E.2d 633 (2003). But this rule is subject to an important qualification: "In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration." (Citation and punctuation omitted.) Southern R. Co., supra, 258 Ga. at 233, 367 S.E.2d 539. Circumstantial evidence, therefore, may be sufficient for a plaintiff’s claim to survive summary judgment, if other theories are shown to be less probable . There is no requirement that other theories be conclusively "excluded" as proposed by Big Kev’s and held by the...