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NEGLIGENCE / BREACH OF WARRANTY - GUNN V. KFC U.S. PROPERTIES, INC.

In Gunn v. KFC U.S. Properties, Inc., [Ms. 2090980, Apr. 8, 2011] __ So. 3d __(Ala. 2011), the Alabama Court of Civil Appeals held that the plaintiffs could not recover damages for emotional distress and loss of consortium arising out a tooth that mysteriously ended up in a piece of chicken. The plaintiffs, Joel and Donna Gunn, bought a box of chicken from a Kentucky Fried Chicken restaurant ("KFC") in Montgomery, Alabama. The next day, Mr. Gunn took a piece of the chicken to work for a snack. Just before he bit into the chicken, he noticed what appeared to be a human tooth in the chicken. Thereafter, he became ill, vomited several times, and was ultimately treated by a local doctor. He missed several days of work as a result of the incident. The Gunns filed suit against KFC and asserted claims for breach of warranty and breach of contract in their complaint. The Gunns did not specifically allege a claim for negligence in their complaint. However, Ms. Gunn asserted a claim for loss of consortium, there were allegations in the Gunns' complaint that KFC had breached the applicable standard of care, and the Gunns made a claim for punitive damages. Ultimately, KFC moved for summary judgment on all of the Gunns' claims, including negligence. Following a hearing, the trial court granted KFC's motion for summary judgment in its entirety. On appeal, the Alabama Court of Civil Appeals concluded that the Gunns could not argue that the trial court had erred in granting KFC's motion for summary judgment with respect to their negligence claim because the Gunns had failed to assert a negligence claim in their complaint. With respect to the Gunns' other claims, the Court concluded the damages claimed by the Gunns, emotional distress and loss of consortium, were not recoverable on a breach of warranty or breach of contract claim. Accordingly, Court affirmed the trial court's entry of summary judgment for KFC.

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