Joel Gunn and Donna Gunn v. KFC U.S. Properties, Inc., et al.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011
2090980
J o e l Gunn and Donna
Gunn
v.
KFC U.S.
Appeal
BRYAN,
Gunn
from
Properties,
Frank
Inc., et a l .
from Montgomery C i r c u i t
(CV-09-900545)
Court
Judge.
Joel
appeal
Properties,
a summary
Inc.;
Schilleci,
Montgomery
("Joel")
and h i s w i f e
judgment
KFC
(collectively
entered
Corporation;
t h e owner
Donna
o f a KFC
"KFC").
We
Gunn
i n favor
Yum!
o f KFC U.S.
Brands,
restaurant
affirm.
("Donna")
Inc.;
located i n
and
2090980
Viewing
Gunns,
the
facts
i n the
t h e n o n m o v a n t s , a s we
f r o m a summary
light
most
May
6, 2 0 0 7 , D o n n a p u r c h a s e d some c h i c k e n
( A l a . 1 9 9 0 ) , we
i n Montgomery,
Joel
the
appeal
j u d g m e n t , H a n n e r s v . B a l f o u r G u t h r i e , I n c . , 564
2d 4 1 2 , 4 1 3
and
to
a r e r e q u i r e d t o do on an
So.
located
favorable
a t e some
of
note the f o l l o w i n g f a c t s .
and she t o o k
a t a KFC
the chicken
the chicken
that
On
restaurant
home.
night.
Donna
Afterwards,
Donna p l a c e d t h e r e m a i n d e r o f t h e c h i c k e n
i n a p l a s t i c bag and
placed
day,
i t in a
chicken
refrigerator.
to work w i t h
Joel
he
the
described
chicken.
that
had
a
He
dizzy,
became
that,
after
little
sick,
of chicken
a s a human
d i d not take
tooth
in i t .
"sick
a n d he w e n t
Joel
from
tooth
a bite
Shortly
While
t h e bag and
embedded
took
discovered
i n the crust
of the piece
" d i d not
feel
Joel
informed
h i s employer
medication
f o r an u p s e t
again
A t home,
Donna,
good"
of
chicken
became
He
and
stated
felt
"a
t h a t he
was
a nurse,
gave
The
medical
f o l l o w i n g day,
record
Joel
from t h a t v i s i t
was
t r e a t e d by
a
states that Joel
Joel
Joel
night.
that
stomach and d i z z i n e s s .
of
Joel
afterwards,
he
home.
the
a t work,
t o h i s stomach," and v o m i t e d .
vomiting,
lightheaded."
next
h i m t o e a t as a s n a c k .
removed a p i e c e
what
The
vomited
doctor.
The
complained of
2090980
nausea,
vomiting,
doctor prescribed
Joel
testified
full
chicken.
little
that
he
vomited
d a y he v o m i t e d .
days
of
After
work
once
or
more,
vertigo.
returning
but
he
Joel t e s t i f i e d that
following
to
weak t o [ h i s ] s t o m a c h "
he
dizziness
J o e l some m e d i c a t i o n , w h i c h he b e g a n
that
remember w h i c h
three
a c h i n e s s , and
work,
the
he
taking.
could
he
incident
days.
Joel
not
missed
with
continued to
f o r a few
The
the
feel
"a
testified
s u f f e r e d m e n t a l d i s t r e s s f o r s e v e r a l w e e k s due
to the
incident.
The
claim
Gunns
KFC,
alleging
claims.
The
that
KFC
had
had
" w a r r a n t e d [ t h a t t h e f o o d ] was
and
had
warranty.
breached
claim
that
of breach
second
claim
alleged
a l l e g e d t h a t KFC
were
had
f i t f o r human
warranty.
The
third
warranty of f i t n e s s
Donna's
allege
free
of i m p l i e d
from
foreign
The
first
i t e m s , " and
claim
of
contract.
"warranted that
consumption"
f i tfor
that
appears
KFC
t o be
loss-of-consortium
The
third
that
t o be
KFC
claim
claim.
The
sale
breached
a claim
that
of breach
fourth
compensatory
of
claim
c o m p l a i n t does
Gunns s o u g h t
a
The
i t s items f o r p u b l i c
and
appears
The
f o r a p a r t i c u l a r p u r p o s e . The
a negligence claim.
of
warranty of m e r c h a n t a b i l i t y .
breach
claim
first
"warranted the m e r c h a n t a b i l i t y
human c o n s u m p t i o n
is
four
f o o d , " t h a t KFC
the
alleged
sued
not
and
2090980
punitive
KFC
damages.
moved f o r a summary j u d g m e n t , a s s e r t i n g
U.S.
Properties,
only
proper
emotional
Gunns
Inc.,
not
claim;
negligence
c l a i m , KFC
that
the
and
of danger."
See
1998)
by
J o e l was
i n the
(articulating
recoverable
in
stated
Gunns' a c t i o n
that
(2)
that
J o e l was
I n c . v.
the
chicken
of
Following
was
the
three
seeking
trial
a
hearing,
court's
Gunns a p p e a l e d
assertions
without
denial
to
the
of
this
trial
court.
So.
The
made
test
court
KFC
granted
court
a
arguments
in
to
are
on
the
response
answering
its
KFC's
motion.
summary-
Following
Gunns' postjudgment
This
1141
summary-judgment
Gunns f i l e d
by
"zone
2d
a summary j u d g m e n t
The
the
cause
damages
s p e c i f y i n g a reason.
the
not
"zone-of-danger"
case).
"in i t s entirety."
judgment motion,
did
716
a
purported
never i n a
Francis,
the
sustain
to the
emotional-disturbance
KFC
that
t o a s u m m a r y j u d g m e n t on
of
the
alleged
and
to
KFC
is
the
trivial
to the summary-judgment m o t i o n , p r e s e n t i n g
each
that
respect
piece
negligence
that
defendants,
evidence
that, with
is entitled
whether
named
sufficient
AALAR, L t d . ,
a
the
t o J o e l and
determine
motion
case;
(3)
tooth
physical injury
(Ala.
this
provided
negligence
any
in
defendant
of
distress suffered
had
ground
one
(1)
motion,
determined
that
the
the
i t
2090980
did
not
have
transferred
court
ยง
then
appellate
the appeal
transferred
12-2-7(6),
jurisdiction
t o t h e supreme
the appeal
and,
court.
to this
therefore,
The
court,
supreme
pursuant to
A l a . Code 1 9 7 5 .
"In reviewing the d i s p o s i t i o n of a motion f o r
s u m m a r y j u d g m e n t , 'we u t i l i z e t h e same s t a n d a r d a s
the t r i a l court i n d e t e r m i n i n g whether the evidence
b e f o r e [ i t ] made o u t a g e n u i n e
issue of material
f a c t , ' B u s s e y v . J o h n D e e r e C o . , 5 3 1 S o . 2 d 8 6 0 , 862
( A l a . 1 9 8 8 ) , a n d w h e t h e r t h e m o v a n t was ' e n t i t l e d t o
a judgment as a m a t t e r o f l a w . ' W r i g h t v. W r i g h t ,
654 S o . 2 d 542 ( A l a . 1 9 9 5 ) ; R u l e 5 6 ( c ) , A l a . R. C i v .
P. When t h e m o v a n t m a k e s a p r i m a f a c i e s h o w i n g t h a t
there
i s no g e n u i n e
issue of material fact, the
burden
shifts
to
the
nonmovant
to
present
s u b s t a n t i a l e v i d e n c e c r e a t i n g s u c h an i s s u e . B a s s v .
S o u t h T r u s t B a n k o f B a l d w i n C o u n t y , 538 S o . 2 d 7 9 4 ,
797-98 ( A l a . 1 9 8 9 ) .
Evidence i s ' s u b s t a n t i a l ' i f i t
is
o f 'such w e i g h t
and q u a l i t y t h a t
fair-minded
persons i n t h e e x e r c i s e of i m p a r t i a l judgment can
r e a s o n a b l y i n f e r t h e e x i s t e n c e of t h e f a c t sought t o
be p r o v e d . '
W r i g h t , 654 S o . 2 d a t 5 4 3 ( q u o t i n g W e s t
v . F o u n d e r s L i f e A s s u r a n c e C o . o f F l o r i d a , 547 S o .
2 d 87 0 , 871 ( A l a . 1 98 9 ) ) . O u r r e v i e w i s f u r t h e r
s u b j e c t t o t h e c a v e a t t h a t t h i s C o u r t must r e v i e w
the
record
in a
light
most
favorable
to the
nonmovant and must r e s o l v e
a l l reasonable
doubts
a g a i n s t t h e movant. Wilma Corp. v. F l e m i n g Foods o f
A l a b a m a , I n c . , 613 S o . 2 d 3 5 9 ( A l a . 1 9 9 3 ) ; H a n n e r s
v . B a l f o u r G u t h r i e , I n c . , 564 S o . 2 d 4 1 2 , 4 1 3 ( A l a .
19 9 0 ) . "
Hobson
(Ala.
v. American
Cast
Iron
this
i s a
Pipe
C o . , 690 S o . 2 d 3 4 1 , 344
1997).
Procedurally,
complaint
appears
peculiar
t o have a l l e g e d
claims
case.
of breach
The
Gunns'
of implied
2090980
warranty
of
m e r c h a n t a b i l i t y , breach
warranty
of
fitness
consortium.
summary
motion
to
Although
judgment
focused
a l l e g e d by
on
the
action
that
claim.
trial
because,
they
existed
as
c l a i m of
negligence."
(emphasis
and
bold
typeface
satisfying
the
articulated
in
damages
emotional
AALAR,
for
our
recovery
plaintiffs
defendant's
AALAR,
say,
supreme
for
current
Gunns'
In
court
stated
emotional
who
sustain
of p h y s i c a l
a
This
test
is
harm by
known
as
on
physical
o r who
is
appear
1
that
clearly
recovery
of
claims.
In
negligence
as
at
substantial
first
the
a
evidence
brief
limited
injury
a
cases,
"to
those
result
of
a
are p l a c e d i n immediate
that conduct."
the
in
claim
making
negligence
that,
distress
n e g l i g e n t conduct,
risk
standard,
concerning
distress
that
appeal,
"sufficient
omitted).
supra,
a
in entering
a r g u m e n t , t h e Gunns a r g u e t h a t t h e y h a v e s u b m i t t e d
evidence
sought
does not
erred
judgment
the
of
N e v e r t h e l e s s , on
court
of
loss
a negligence
complaint
summary
to
and
in i t s entirety,
p e r c e i v e d t o be
However, the
argue
purpose,
summary-judgment motion
Gunns'
a negligence
first
contract, breach
particular
KFC's
the Gunns.
Gunns
a
on w h a t KFC
have a l l e g e d
the
for
of
716
"zone-of-danger"
making arguments c o n c e r n i n g the zone-of-danger
So.
2d
test.
at
Id.
1147.
In
test applied in
2090980
negligence
cases,
complaint
their
does
court's
they
not
arguments
relevant.
the
appear
Essentially,
address
to
concerning
j u d g m e n t on
can
Gunns
have
the
Gunns a s k
the
basis
The
the
of
the
G u n n s do
Gunns'
not
zone-of-danger
zone-of-danger
distress
Warrick,
8 68
test
So.
Thus,
not
appear
to reverse
their
control
in
See
438-40
may
a breach-of-contract
c l a i m and
to
that
and
So.
2d
69,
(Ala.
violate
the
827
specifically
articulated
63,
purpose
70
referring
in
AALAR]
breach-of-contract
to
was
case"
listing
v.
2001)
the
the
actual
a
reverse
also
of
claims.
whether
The
emotional-
Concrete,
(stating
second
to
apply
stating
(stating
exceptions
Stores,
that
part
rule
the
that
rule
the
Inc.,
" i t would
of
that
v.
recoverable
specific
Wal-Mart
and
Inc.
2003)
zone-of-danger
created
and
trial
breach-of-contract
Morris
Bowers
f o r which
be
applicability
( A l a . C i v . App.
on
rule);
the
not
t h a t e m o t i o n a l - d i s t r e s s damages a r e g e n e r a l l y n o t
general
to
have e s t a b l i s h e d t h a t
potential
recoverable
2d 429,
alleged.
argument.
any
not
cases.
their
A c c o r d i n g l y , we
regarding
does
are
breach-of-warranty
us
that
e m o t i o n a l - d i s t r e s s d a m a g e s on
first
address
test
damages
do
the b a s i s t h a t they
s u c c e s s f u l l y recover
claim
actually
negligence
c l a i m never a c t u a l l y a l l e g e d .
on
a
rule
[there
test
in
a
does
2090980
not
apply
to breach-of-warranty
cases).
N e x t , t h e Gunns a r g u e t h a t t h e t r i a l
they
say, the t r i a l
of c a r e "
is
their
c l a i m ex mero motu. Gunns' b r i e f
somewhat
Gunns
court dismissed
court erred because,
unclear.
appear
attorney
In attempting
t o have
l a t c h e d onto
at the hearing
on
"breach
of
standard
a t 8. T h i s
argument
to win
a reversal,
a statement
made b y
t h e summary-judgment
the
KFC's
motion.
At
the h e a r i n g , KFC's a t t o r n e y n o t e d
t h a t KFC was n o t m o v i n g f o r
a
of
summary
care";
judgment
on
the
issue
of
standard
i t a p p e a r s t h a t t h e a t t o r n e y was s i m p l y r e f e r r i n g
element
of
the
Significantly,
"breach
Gunns'
the
complaint
of standard
supposed
does
purport
claim.
to
allege
In t h e i r b r i e f ,
of standard
of
t o an
negligence
not
of care" claim.
argue t h a t they a l l e g e d the "breach
in
"breach
a
t h e Gunns
of care"
claim
p a r a g r a p h s 1 2 , 1 3 , 1 7 , 1 8 , 2 1 , 2 2 , a n d 25 o f t h e c o m p l a i n t .
That
i s , t h e Gunns
contend
that
standard
of care"
warranty
of m e r c h a n t a b i l i t y , breach
warranty
of
consortium.
rate,
claim i n their
they
fitness
for a
Their
argument
a l l e g e d the "breach
claims
particular
of breach
of
i s somewhat
a summary
breach
and
confusing.
t h e Gunns' s t a t e d argument t h a t t h e t r i a l
motu e n t e r e d
of i m p l i e d
contract,
purpose,
j u d g m e n t on t h e " b r e a c h
of
of
loss
of
At
any
c o u r t ex
mero
of standard
of
2090980
care"
claim fails
court
to enter
entirety."
o n i t s own t e r m s b e c a u s e KFC m o v e d t h e t r i a l
a summary
Thus,
judgment
t h e Gunns'
t h e Gunns'
second
argument
action
" i n
its
forreversal i s
unpersuasive.
In
that
their
were
not
instance,
the
reply
("AEMLD").
i n their
discuss
Extended
not permit
a
reply brief."
t o argue
principal
a purported
claim
Manufacturer's
The c o m p l a i n t
do
t h e Gunns a t t e m p t
discussed
t h e Gunns
Alabama
592,
brief,
brief.
For
brought
under
Liability
t o be r a i s e d
f o r the f i r s t
Birmingham Bd. o f Educ. v. Boyd,
(Ala.
their
two
"We
time i n
877 S o . 2 d
2003).
In
Doctrine
d i d n o t a l l e g e a n AEMLD c l a i m .
new m a t t e r s
594
issues
Gunns h a v e f a i l e d
"An
waived."
1111,
Davis,
2010)
waives
only
argument
Avis
1124 n.8
presented
to e s t a b l i s h that
c o u r s e , we c o n s i d e r
Gunns.
arguments
the t r i a l
not
made
2003).
( " F a i l u r e b y an a p p e l l a n t
appeal.").
court
on
appeal
issue
See a l s o
Galaxy
the
Of
So. 3d
i t from
t h e arguments
,
I n c .v.
(Ala.
i n i t s brief
consideration
actually
or
876 S o . 2 d
Cable,
t o a r g u e an i s s u e
and p r e c l u d e s
Considering
erred.
i s abandoned
Rent A Car S y s . , I n c . v. Heilman,
(Ala.
court,
t h o s e a r g u m e n t s a c t u a l l y made b y t h e
[Ms. 1 0 9 0 0 8 6 , S e p t . 1 0 , 2 0 1 0 ]
that
to this
presented,
on
we
2090980
affirm
the t r i a l
court's
summary
judgment.
AFFIRMED.
Pittman,
Thompson,
Moore,
joins.
J . , concurs.
P.J., concurs
i n the r e s u l t ,
J . , dissents, with
writing,
without
i n which
writing.
Thomas, J . ,
2090980
MOORE, J u d g e ,
dissenting.
Because I conclude that
the
claims
trial
court
entering
and
Yum!
to
the p a r t i e s
t h e main o p i n i o n
agreed
and because
I believe
a summary j u d g m e n t
i n favor
Brands,
o f KFC U.S.
as
t o be
Joel
Properties,
" t h e KFC
court
by t h e
erred
in
Gunn a n d D o n n a Gunn
I n c . ; KFC
Schilleci
to address
considered
the t r i a l
against
I n c . ; and Frank
collectively
were
fails
Corporation;
(hereinafter
defendants"),
I
referred
respectfully
dissent.
The
for
main
opinion
c o r r e c t l y notes
a summary j u d g m e n t ,
that,
t h e KFC d e f e n d a n t s
i n their
motion
asserted:
"(1)
t h a t KFC U.S. P r o p e r t i e s ,
I n c . , one o f t h e
named d e f e n d a n t s , i s t h e o n l y p r o p e r d e f e n d a n t i n
t h i s c a s e ; (2) t h a t t h e a l l e g e d e m o t i o n a l d i s t r e s s
s u f f e r e d b y J o e l was t r i v i a l a n d t h a t t h e G u n n s h a d
not
provided
sufficient
evidence
to sustain
a
n e g l i g e n c e c l a i m ; a n d (3) t h a t , w i t h r e s p e c t t o t h e
p u r p o r t e d n e g l i g e n c e c l a i m , [ t h e KFC d e f e n d a n t s a r e ]
e n t i t l e d t o a s u m m a r y j u d g m e n t on t h e g r o u n d t h a t
the t o o t h i n t h e p i e c e o f c h i c k e n d i d n o t cause any
p h y s i c a l i n j u r y t o J o e l a n d t h a t J o e l was n e v e r i n
a 'zone o f d a n g e r . ' "
So.
So.
3d a t
2d
1141
opposition
that
(citing
AALAR,
( A l a . 1998)).
The
t o t h e KFC d e f e n d a n t s '
brief,
the
Gunns
L t d . , I n c . v. F r a n c i s ,
filed
a
brief
in
summary-judgment m o t i o n ; i n
responded
11
Gunns
716
only
to
the
arguments
2090980
presented
their
by
the
complaint
KFC
stated
t h e i r negligence
of
danger"
infliction
The
should
c l a i m and
opinion
be
i n an
a
substance.
foreign
duty
to
its
preparation
[the
material
damages
that
the
the
that
So.
the
KFC
Under Alabama
to
law,
exercise
of
food,
merchantable
encompassing
More
defendants
asserting
(Ala.
a negligence
did,
a
judgment
not
3d
reasonable
"i.e.,
food
or
The
"unmerchantable"
importantly,
in
allege
at
.
had
...
food
care
assertion
could
be
sold
owes
in
a
the
to
sell
was
not
Davis,
709
that
I n c . v.
The
contained
a duty
food
a
that
the
construed
KFC
as
claim.
after
fact,
negligence
to
"zone
a restaurant
1997).
1139
as
negligent
defendants
So.
sold
for
did
Flagstar Enters.,
defendants
fact
summary
Gunns
unreasonably dangerous."
1132,
that
been w i t h i n the
complaint.
packaging
customer]
2d
asserted
unmerchantable c o n d i t i o n because i t
customers
and
recover
because
alleged
them f o o d
J o e l had
concludes
in their
specifically
of
they
distress.
reversed
claim
i.e.,
issues
that
to
emotional
main
not
Gunns
genuine
sufficient
of
negligence
defendants;
completing
understand
claim.
"Under
12
discovery,
that
the
[Rule
8,
the
Gunns
Ala.
R.
KFC
were
Civ.
2090980
P.,]
8,
the
prime purpose of p l e a d i n g s
Ala.
Under
R.
Civ.
notice
P.,
Committee
pleading,
i f
w o r d i n g of a c o m p l a i n t ,
negligence,
which
the
a
deciphers
terminology
used.
with
the
they
KFC
negligence
In
did,
the
Gunns
on
Thus, the
appeal.
upon
to
then
the
Adoption.
the
the
a claim
of
complaint
of the
exact
summary-judgment
acknowledged
that
Rule
reviewing
claim regardless
premise
they
their
had
c o m p l a i n t c a n n o t now
agreement
alleged
be
a
construed
1
the
summary-judgment
asserted
only
that
J o e l had
not
the
1973
i t to i n c o r p o r a t e
responding
defendants'
claim.
differently
By
notice."
on
p l a i n t i f f intended,
states a negligence
as
Comments
defendant,
sufficiently
motion
i s to give
motion,
Gunns' n e g l i g e n c e
suffered a physical injury
the
claim
and
KFC
defendants
failed
b e c a u s e he
because
was
not
T o t h e e x t e n t t h a t t h e c o m p l a i n t c o u l d be c o n s t r u e d
as
a l l e g i n g b r e a c h - o f - w a r r a n t y and b r e a c h - o f - c o n t r a c t c l a i m s , t h e
G u n n s do n o t a s s e r t t h a t t h e t r i a l c o u r t c o m m i t t e d a n y e r r o r
i n e n t e r i n g t h e s u m m a r y j u d g m e n t on t h o s e c l a i m s ;
therefore,
those c l a i m s are c o n s i d e r waived.
B o s h e l l v . K e i t h , 418
So.
2d 89, 92 ( A l a . 1982)
("When an a p p e l l a n t f a i l s t o a r g u e an
issue i n i t s [ i n i t i a l ] b r i e f , that issue i s waived.").
The
G u n n s do b e l a t e d l y a s s e r t i n t h e i r r e p l y b r i e f t h a t t h e t r i a l
c o u r t e r r e d i n e n t e r i n g a s u m m a r y j u d g m e n t on a n y c l a i m b a s e d
on t h e A l a b a m a E x t e n d e d M a n u f a c t u r e r ' s L i a b i l i t y D o c t r i n e , b u t
we c a n n o t c o n s i d e r t h a t a r g u m e n t .
See M c G o u g h v . G & A,
Inc.,
999 So. 2d 898, 905 n.3
( A l a . C i v . App. 2 0 0 7 ) ( " O r d i n a r i l y , we
do n o t c o n s i d e r i s s u e s r a i s e d f o r t h e f i r s t t i m e i n a r e p l y
brief.").
1
13
2090980
sufficiently
for
within
the
"zone
negligent i n f l i c t i o n
e v i d e n c e , when v i e w e d
see
Flagstar,
record
709
shows
consumed
packed
a
batch
the
A s he was
remainder
about
tooth
i n one
bite
into
I
chicken
to
that
those
without
bites,
of
the
facts
Flagstar
However,
purchased
the
and
The
partially
defendants.
next
Joel
becoming
Gunns,
otherwise.
KFC
the
the
day
Joel
at
t o be
lunch.
a human
d i d not
actually
physically
i l l
and
of t h i s
case
are
Enterprises,
sufficiently
v.
Davis,
d e f e n d a n t s ' summary-judgment
motion.
styrofoam
the p l a i n t i f f
opening
she
had
from
before
restaurant;
in a lidded
distracted,
proves
supra, the p l a i n t i f f
a Hardee's
gravy
1134,
f o r consumption
piece
damages
upset.
Flagstar,
from
at
Gunns
s u p r a , t o s u r v i v e t h e KFC
In
sustain
most f a v o r a b l e t o the
of the p i e c e s of c h i c k e n .
conclude
similar
to
t o e a t , he n o t i c e d w h a t a p p e a r e d
that
emotionally
2d
the
of
danger"
of e m o t i o n a l d i s t r e s s .
in a light
So.
that
of
ordered a b i s c u i t
Hardee's
container.
the c o n t a i n e r f u l l y .
the top of the c o n t a i n e r .
served
began e a t i n g
opened the l i d d e d
the
I d . at
Id.
After
I d . at 135-36.
and
The
and
gravy
biscuit
1135.
the b i s c u i t
container fully
14
Inc.
saw
While
and
taking
and
gravy
a
blood
plaintiff,
few
on
who
2090980
became
distraught
at
eating
subsequently
tested
diseases;
t e s t s were n e g a t i v e .
her
The
for
contaminated
plaintiff
seeking
damages
sued
under
hepatitis
and
Id.
Flagstar,
theories
the
of
Id.
at
1133-34.
claims
to
damages.
the
Id.
the
that
i t had
and
at
on
had
food.
supreme
failed
Flagstar
food
and
The
Id.
court
presented,
that
a
had
the
at
infliction
to
Id.
of
at
owner
of
emotional
Hardee's,
and
under
Doctrine
the
awarded
the
("AEMLD").
plaintiff's
the
plaintiff
moved f o r a j u d g m e n t
negligence
present
court
infectious
claim,
as
asserting
evidence i n d i c a t i n g
in
preparing
denied that motion,
and
1139-40.
jury
breached
1140.
trial
affirmed,
t h a t the p l a i n t i f f
result.
Flagstar
was
1136.
submitted
jury
the p l a i n t i f f ' s
appealed.
evidence
the
at
b r e a c h e d a d u t y owed t o t h e p l a i n t i f f
s e r v i n g her
Our
and
court
1133-34.
plaintiff
Flagstar
trial
jury,
a m a t t e r of law
that
The
other
negligence
Alabama Extended M a n u f a c t u r e r ' s L i a b i l i t y
food,
recognizing
reasonably
i t s duty
had
by
that,
could
have
serving
from
concluded
contaminated
suffered emotional distress
Addressing
d i s t r e s s , the
the
issue
court
of
as
negligent
recognized
" [ d ] a m a g e s f o r e m o t i o n a l d i s t r e s s may be a w a r d e d i n
a negligence
case, even i n the absence of p h y s i c a l
15
the
that
2090980
injury.
T a y l o r v . B a p t i s t M e d i c a l C e n t e r , I n c . , 400
So. 2d 369 ( A l a . 1 9 8 1 ) .
See a l s o , R e s e r v e N a t i o n a l
Ins.
Co. v . C r o w e l l , 614 So. 2d 1 0 0 5 ,
1011
(Ala.
1 9 9 3 ) , c e r t . d e n i e d , 510 U.S. 824, 114 S . C t . 84,
126
L . E d . 2 d 52 ( 1 9 9 3 ) , w h e r e i n t h i s C o u r t r e c o g n i z e d t h e
difference
between
a
claim
alleging
negligent
infliction
o f e m o t i o n a l d i s t r e s s and a c l a i m n o t
based
on
infliction
of
emotional
distress,
but
p u r s u a n t t o w h i c h damages f o r e m o t i o n a l d i s t r e s s
may
n o n e t h e l e s s be a w a r d e d . "
Flagstar,
1147
709
So.
(discussing
2d
1141
n.5.
Flagstar,
See
supra,
a l s o A A L A R , 716
and
at
serving
within
risk
her
the
emotional
The
case
of
physical
contaminated
"zone
of
distress
injury
food
danger"
on
her
as
and,
and
a
result
negligence
she
to
had
recover
Gunns a l l e g e
s u p r a , and
the
t h a t t h e KFC
ate
the
observing
and
with
the
vomited,
his
within
chicken
contamination
and
t h a t he
symptoms.
the
purported
of
zone
service
As
of
of
served
i n the
to
danger
16
for
by
food.
the
he
Joel
that,
upon
became
upset
supra,
KFC
instant
that
treatment
i n AALAR,
created
contaminated
him,
chicken,
required medical
recognized
been
defendants
chicken f o r J o e l ' s consumption,
portion
be
claim).
served contaminated
a
at
of F l a g s t a r ' s
that
entitled
s i m i l a r i t i e s between F l a g s t a r ,
a r e c o m p e l l i n g . The
i n F l a g s t a r would
thus,
was
2d
r e c o g n i z i n g t h a t i t was
r e a s o n a b l y f o r e s e e a b l e t h a t the p l a i n t i f f
placed
So.
to
Joel
deal
was
defendants'
2090980
For the a b o v e - s t a t e d reasons,
I w o u l d r e v e r s e t h e summary
j u d g m e n t e n t e r e d i n f a v o r o f t h e KFC d e f e n d a n t s
cause
for further
proceedings.
dissent.
Thomas,
J . , concurs.
17
I,
therefore,
and remand t h e
respectfully
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