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Atlanta, GA— The Georgia Court of Appeals Thursday upheld the dismissal of a suit against a Chick-fil-A franchise owner for burns suffered by a toddler who visited the restaurant's playground.
In an opinion authored by Judge Amanda Mercier, the appellate court affirmed the Superior Court of Tift County’s exclusion of expert testimony linking sanitizer to burns a 19-month-old boy allegedly suffered while playing on a Chick-fil-A playground in 2015.
According to the opinion, Knox Stern was treated for burns on his feet after playing barefoot at a Chick-fil-A playground in Tifton, Georgia. Stern’s parents sued the restaurant's owner, David Pettis, with the family’s expert concluding Kay-5 sanitizer used on the playground likely caused the burns. However, the trial court excluded the testimony, finding it too speculative, and granted summary judgment to Pettis.
In an opinion joined by Judges M. Yvette Miller and Christian Coomer, Judge Mercier concluded the trial court properly excluded the expert’s testimony. Judge Mercier acknowledged the restaurant’s employees cleaned portions of the playground with Kay-5 sanitizer each morning. However, she wrote that the playground’s floor was not sanitized with the chemical, and that plaintiffs offered no evidence the child’s feet came in contact with any other playground surface.
“Because no evidence connects the burns on Knox’s feet to the Kay-5 chemicals,” the Court wrote, “any finding of liability based on the restaurant’s use of the sanitizer would be mere conjecture.”
The appellate court also upheld the trial court’s rejection of a res ipsa loquitur argument against the restaurant owner. “[T]he Sterns have not shown that Knox suffered the type of injury ‘which ordinarily occurs only if someone is negligent,’” the court wrote, citing case law analyzing res ipsa liability. “Nothing precludes the possibility that Knox was burned simply by playing barefoot on an outdoor surface at lunchtime on a sunny, 80 to 90-degree day.”
Email Arlin Crisco at acrisco@cvn.com.
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