The question of whether a caterer can be sued over food poisoning suffered by wedding guests produced a 5-4 split and two strong dissents at the Georgia Court of Appeals.
In the end, the majority said no, the guests could not sue because they could not prove it was the food served by "Big Kev's Barbecue" that made them sick. Judge Charlie Bethel wrote the June 30 opinion, joined by Presiding Judge M. Yvette Miller and Judges Elizabeth Branch, Carla McMillian and Amanda Mercier.
"A plaintiff may prevail in food poisoning cases in Georgia by establishing that the food at issue was defective or unwholesome," Bethel wrote. "However, in the absence of direct evidence of the defectiveness of the food, recovery can be supported by circumstantial evidence only if every other reasonable hypothesis as to the cause of the plaintiff's illness can be excluded by the evidence brought forward by the plaintiff."
Bethel ruled that the plaintiffs, Joshua and Taylor Patterson, could not sue Big Kev's owner, Kevon, over the food they ate at the rehearsal dinner because they also ate food from other sources around the time of the wedding dessert and drinks that evening, another caterer's offerings at the reception the next day and fast food meals afterward. Also, Bethel reasoned, since only Joshua Patterson had tested positive for salmonella after emergency medical treatment, Taylor could not prove her similar symptoms were caused by salmonella.
The majority upheld Morgan County Superior Court Judge Hugh Wingfield III in granting the defense motion for summary judgment.
Former Chief Judge Sara Doyle disagreed. Presiding Judges Anne Barnes and Christopher McFadden sided with her.
Doyle said the diagnosis of salmonella for Joshua Patterson and another wedding guest, plus testimony that a total of 17 people became ill with similar symptoms within days of eating the rehearsal dinner served are "sufficient to exclude the alternative hypotheses posited by Big Kev's as to the cause of the illness. Thus, the grant of summary judgment in favor of Big Kev's was improper."
McFadden also wrote a separate dissent saying his colleagues in the majority were looking at the whole case the wrong way. Judge Clyde Reese concurred with McFadden.
"Because the trial court invaded the province of the jury in granting summary judgment to Big Kev's, the judgment should be reversed," McFadden wrote.
McFadden agreed with Bethel that the plaintiffs have a heavy burden of proof because they have to rely on circumstantial evidence, having no proof that salmonella was in the food. But, McFadden said, "that is their burden of proof as the plaintiffs at trial. That is not their burden as the nonmovants opposing a motion for summary judgment."