Playground Burn Case Emphasizes the Importance of Expert Testimony

Holly and Craig Stern sued the Tifton Chick-Fil-A franchisee (“the CFA”) for negligence over the claim that their son was injured on the restaurant’s playground. The trial court, prior to trial, excluded the parents’ causation expert and granted summary judgment to the CFA. On August 20, 2020, the Georgia Court of Appeals affirmed. (https://cases.justia.com/georgia/court-of-appeals/2020-a20a1261.pdf?ts=1597936098).

The facts of the case are that while the child was playing on the playground shoeless (as instructed by a sign at the playground), he received bad burns on the bottoms of his feet. The Sterns hired an expert doctor of biochemistry who opined that a sanitizer sprayed onto the playground equipment caused it to heat in the sun. The expert’s opinion that there was a causal link between the sanitizer and the burns was too speculative to be allowed to go before the jury. This was mostly due to his less-than-helpful testimony where he admitted he was speculating when asked things like if he had any evidence that the child touched cleaned equipment or why he only had burns on the bottom of his feet if the CFA specifically does not clean the playground floor with the cleaner. Also, not being a medical doctor, his testimony about first aid, what burns appear based on what temperatures, etc. was not helpful to the jury.

Without the expert testimony demonstrating a causal link between the hazardous condition and the child’s injury, summary judgment was granted to the CFA. The Sterns could not point to any evidence establishing when the cleaning “occurred on May 23, 2015, the process used for the cleaning, or what equipment was actually sprayed.” Further, there was no evidence that the bottoms of the child’s feet contacted anything other than the playground flooring, which was not cleaned with the sanitizer. Pivoting to the theory that it must have just been heat that caused the child’s injuries because he went to the playground and was immediately injured, the appellate court noted that long-standing Georgia jurisprudence that the occurrence of an injury, without more, does not alone point to a hazardous condition. Finally, the Sterns argued res ipsa loquitor (the thing speaks for itself), but found that the CFA did not have “exclusive control” over the busy playground and again noted the lack of medical evidence about the burns.

This is a case which demonstrates the necessity of sound expert opinion in cases involving contentious causative and medical issues and the importance of sound questioning of those experts to bolster the claim or, if on the other end of the suit, destroy the testimony of that expert so as to get the opinion totally excluded.