Appellant-plaintiff Luenell Wilson brought the instant complaint for damages for emotional distress against appellee-defendant J & L Melton, Inc. d/b/a McDonald’s Restaurant the “Restaurant”, averring negligence, negligence per se , and breach of the implied warranty of merchantability under OCGA § § 51-1-23, 26-2-20, and 11-2-314 and 11-2-715 2 b, respectively, for selling her french fries contaminated by blood. Further, Wilson sought bad faith attorney fees under OCGA § 13-6-11 because the Restaurant allowed its “fry man” to continue serving french fries knowing that he cut himself regularly. The Restaurant moved to dismiss for spoliation of the evidence, or, in the alternative, for summary judgment, pertinently arguing that the only alleged damage supported by the record was emotional distress in Wilson stemming from the fear that she had been exposed to HIV or hepatitis. Contending that genuine issues of material fact remain, but without addressing the foregoing argument, Wilson challenges the grants of summary judgment for the Restaurant. Finding no evidence which shows that Wilson was exposed to HIV or hepatitis and that her claim under OCGA § 13-6-11 for stubborn litigiousness was not raised and ruled upon in the trial court, we disagree and affirm. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. Matjoulis v. Integon Gen. Ins. Corp ., 226 Ga. App. 459 1 486 SE2d 684 1997.” Walker County v. Gwinnett Hosp. Sys. , 263 Ga. App. 554, 555 588 SE2d 441 2003. However, “if the defendant is successful in piercing plaintiff’s pleadings with regard to one essential element, the defendant is entitled to summary judgment regardless of whether issues of fact remain with regard to the other elements.” Grant v. Perimeter Mall Mgmt. Corp. , 215 Ga. App. 652, 653 452 SE2d 153 1994. On appeal, we review a trial court’s grant of summary judgment de novo , construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis , 243 Ga. App. 11,12 530 SE2d 477 2000.
Viewed in a light most favorable to nonmovant Wilson, the record shows that on October 9, 2002, Wilson ordered a Quarter Pounder Combo Meal for lunch at the Restaurant’s drive-thru window. Wilson deposed that she began eating the french fries included in the meal as she drove away and, when looking down at a stop sign, noticed what she believed to be two blood spot on the inner side of the fries container. Although she had seen nothing out of the ordinary on the french fries she had eaten, Wilson vomited, and feeling nauseous, returned to the Restaurant and confronted on-duty manager Tonya Williams with the french fries container.
