                               THIRD DIVISION
                               DILLARD, P. J.,
                            GOBEIL and HODGES, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 28, 2019




In the Court of Appeals of Georgia
 A19A1240. MATTHEWS v. YOPLAIT USA, INC.                                      HO-041

      HODGES, Judge.

      In this consumer food product liability case, Tangerina Matthews appeals a trial

court order granting Yoplait USA, Inc.’s motion for summary judgment. Matthews

asserts the trial court erred in granting summary judgment to Yoplait after

determining that the doctrine of res ipsa loquitur applies. Because we conclude the

trial court misapplied the doctrine, we reverse and remand this case to the trial court

for further proceedings consistent with this opinion.

      Under Georgia law,

      [s]ummary judgment is proper when there is no genuine issue of
      material fact and the movant is entitled to judgment as a matter of law.
      A de novo standard of review applies to an appeal from a grant or denial
      of summary judgment, and we view the evidence, and all reasonable
      conclusions and inferences drawn from it, in the light most favorable to
      the nonmovant.


(Citation and punctuation omitted; emphasis supplied.) Kamara v. Henson, 340 Ga.

App. 111 (796 SE2d 496) (2017). So viewed, the record reveals that Matthews

purchased a small container of strawberry yogurt manufactured and packaged by

Yoplait. Matthews alleged the container remained sealed until she opened it while

driving her daughter to work. While in her car, Matthews opened the container,

stirred it with a plastic spoon, and began eating, thinking the crunching sensation she

felt was caused by the strawberries. However, according to Matthews, she realized

that, after swallowing, sharp metal fragments were present in the yogurt. Matthews

immediately felt throat pain, realized her lips or gums were bleeding, parked her

vehicle, and called 911. At the hospital, Matthews underwent an endoscopy, and the

doctors gave her husband the metal fragments removed from her gastrointestinal tract.

According to Matthews, the doctor removed 17 metal fragments, measuring over

1.5mm in size, from her stomach.

      Matthews sued Yoplait for negligence under OCGA § 51-1-23, negligence per

se for violation of the Georgia Food Act, OCGA § 26-2-20 et seq., and expenses of

litigation. Yoplait filed a motion for summary judgment, arguing that (1) the quality

                                          2
assurance procedures in its facility, including strainers, screens, and an x-ray

machine, would have caught the metal flakes, given their size and number, if they

derived from Yoplait, (2) expert testing confirmed the metal flakes were composed

primarily of carbon and iron and “did not likely originate” from the Yoplait facility

because Yoplait, in accordance with U. S. Food and Drug Administration regulations,

does not use the type of metal comprising the flakes in its facility, and (3) the nature

of Yoplait’s manufacturing process makes it impossible for the metal flakes to have

been deposited in only one yogurt container, and Yoplait has not had any other

complaint of metal flakes in its yogurt.

      In response, Matthews argued that, despite these contentions, the doctrine of

res ipsa loquitur creates a genuine issue of material fact for the jury to decide the

issue of negligence because there is no other explanation for the presence of the metal

flakes in the sealed yogurt container other than Yoplait’s negligence. Matthews noted

that Yoplait’s senior quality control manager at the facility where the subject yogurt

was packaged admitted that “metal inclusion is a significant hazard in the

manufacturing and processing of Yoplait yogurt[.]” In fact, according to the senior

quality control manager, the control of metal inclusion is an important part of

Yoplait’s manufacturing and packaging operation, and the Yoplait facility checks for

                                           3
it at least every four hours, and more often if there is a change or startup. The quality

control manager testified that although she has “very rarely” seen metal in yogurt, it

is “not unheard of[,]” and she recalled that metal dusting from pieces of a gasket had

previously contaminated yogurt, but was discovered before leaving the plant. She

agreed that metal inclusion in yogurt due to equipment with metal parts would be

unlikely, but could occur.

      In addition, Matthews submitted a Yoplait report for the date the yogurt at issue

was packaged indicating that cups tipped over and the production line subsequently

was repaired prior to the subject yogurt being sealed. However, Yoplait noted that

despite a jam for a tipped yogurt cup during production of Matthews’s product, the

manufacturing records for that date indicated the x-ray machine passed all checks,

and no foreign material was detected.

      Matthews further noted that although Yoplait uses multiple screens and

strainers to remove foreign objects from the yogurt during the manufacturing process,

these screens and strainers are used before fruit is added to the yogurt. The only check

for foreign substances after the addition of fruit is the x-ray machine through which

the sealed yogurt containers pass. However, while Yoplait’s senior quality control

manager testified that she believed Yoplait’s x-ray machine would have detected the

                                           4
size and quantity of the metal fragments swallowed by Matthews, the x-ray machine

would have been calibrated not to detect “particulates” of the same “differential” or

“density” as strawberries. The senior quality control manager could not definitively

state that the density of the metal flakes was different from the strawberry density

because she had not examined the metal fragments; she believed it was “highly

unlikely[,]” but “[n]ot impossible[,]” that the x-ray machine would not have alerted

to the metal flakes.

      Following oral argument and a review of the parties’ briefs and the complete

record, the State Court of Clayton County found that

      based on the evidence in the record of the case at this time, the doctrine
      of res ipsa loquitur does apply. There is an inference that the metal
      flakes were inserted into the yogurt container prior to the container
      being sealed, as it was sealed when it left the manufacturer, and sealed
      before opened by [Matthews] to consume.

(Emphasis in original.) Nonetheless, the trial court further found that “[Yoplait’s]

evidence of the manufacturing process, however, does overcome that inference[.]”

The court then detailed evidence demonstrating that the metal flakes likely were not

the result of Yoplait’s manufacturing or packaging process and granted summary

judgment to Yoplait. This appeal followed.



                                          5
      In two related enumerations of error, Matthews first contends that the trial

court erred in granting Yoplait’s motion for summary judgment after it determined

res ipsa loquitur applied. Matthews further argues that, even if res ipsa loquitur did

not apply, genuine issues of material fact precluded judgment in Yoplait’s favor. For

the following reasons, we conclude that the trial court misapplied the doctrine of res

ipsa loquitur.

      As this Court has recently reiterated, “res ipsa loquitur is a legal maxim that

means the transaction or thing speaks for itself.” (Citation and punctuation omitted.)

Family Thrift, Inc. v. Birthrong, 336 Ga. App. 601, 604 (2) (785 SE2d 547) (2016).

It is “an evidentiary based rule which provides for an inference of negligence to arise

from the occurrence of an injury-causing incident[.]” Ken Thomas of Ga., Inc. v.

Halim, 266 Ga. App. 570, 573 (597 SE2d 615) (2004). This rule of evidence is

“applied in cases where there is no evidence of consequence showing negligence on

the part of the defendant. The doctrine authorizes, but does not require, the jury to

infer facts from the circumstances in which the injury occurred, thereby filling the

evidentiary gap[.]” Aderhold v. Lowe’s Home Centers, 284 Ga. App. 294, 295 (643

SE2d 811) (2007); see also Family Thrift, 336 Ga. App. at 604-605 (2). In other

words,

                                          6
      [t]he principal basis for application of the rule is that the occurrence
      involved would not have occurred but for negligence, and this
      negligence may properly be charged to the person in exclusive control
      of the instrumentality.

(Citation and punctuation omitted.) Persinger v. Step By Step Infant Dev. Center, 253

Ga. App. 768, 770 (560 SE2d 333) (2002). “[T]he doctrine of res ipsa loquitur does

not require elimination of all other possible occurrences; it must only render less

probable all inconsistent conclusions.” (Citation and punctuation omitted.) Id. at 772.

      The elements of the doctrine of res ipsa loquitur are well-settled: (1) an injury

which ordinarily does not occur in the absence of someone’s negligence; (2) the

injury must be caused by an agency or instrumentality within the defendant’s

exclusive control; and (3) the injury was not caused by any voluntary action or

contribution on the part of the plaintiff. See Halim, 266 Ga. App. at 573. “Unless the

plaintiff can show these elements, he or she is not entitled to present the issue to the

jury.” Persinger, 253 Ga. App. at 770. Compare, e.g., Parker v. Dailey, 226 Ga. 643,

645 (1) (177 SE2d 44) (1970) (finding doctrine of res ipsa loquitur not applicable

where tire fell on child).

      If the evidence includes an incomplete explanation of the facts of the
      occurrence to the extent that the true cause is still left in doubt or is not
      clearly shown, the doctrine of res ipsa loquitur remains in the case,
      leaving to the jury a permissible inference of negligence for them to

                                           7
      accept or reject. . . . On the other hand, if the cause of the accident is
      fully explained, the doctrine does not apply. . . . It also does not apply
      if the evidence shows that the injury could just as reasonably been
      caused by something other than the defendants negligence.

(Citations and punctuation omitted.) Doyle v. RST Constr. Specialty, 286 Ga. App.

53, 58 (1) (648 SE2d 664) (2007); but see Atlanta Coca-Cola Bottling Co. v. Ergle,

128 Ga. App. 381, 384 (2) (b) (196 SE2d 670) (1973) (“The evidence need not utterly

negate the possibility of involvement by third persons or extraneous causes as is

contended by the defendant.”).

      “Res ipsa loquitur should be applied with caution and only in extreme cases,

and is not applicable when there is an intermediary cause which could have produced

the injury.” (Citations and punctuation omitted.) Sheats v. Kroger Co., 336 Ga. App.

307, 312 (4) (784 SE2d 442) (2016). Moreover, res ipsa loquitur is not applicable

“where there is direct unambiguous testimony as to the absence of negligence by the

defendant, or where there is no fair inference that the defendant was negligent.” Hosp.

Auth. of St. Marys v. Eason, 222 Ga. 536, 541 (150 SE2d 812) (1966).

      In this case, the trial court found that the doctrine of res ipsa loquitur applies,

but instead of allowing the case to go to a jury, the court granted summary judgment




                                           8
to Yoplait, finding Yoplait overcame the inference of negligence inherent in the

doctrine of res ipsa loquitur. This is an improper application of the doctrine.

      Res ipsa loquitur “allow[s] the jury to decide the case and to make or reject the

inference authorized as it sees fit — it does not create a presumption to that effect for

the defendant to overcome.” (Citation and emphasis omitted.) McCurley v. Ludwig,

215 Ga. App. 798, 800 (2) (452 SE2d 554) (1994); see also Persinger, 253 Ga. App.

at 771. If a trial court determines that res ipsa loquitur applies, “the case may proceed

to the jury[,]” and “[t]he sufficiency of the circumstantial evidence, and its

consistency or inconsistency with alternative hypotheses, is a question for the jury.”

(Citation omitted.) Persinger, 253 Ga. App. at 771; see also Dawson v. American

Heritage Life Ins. Co., 121 Ga. App. 266, 269 (173 SE2d 424) (1970) (finding that

“trial court should have allowed the jury to make a determination of whether the

defendant’s negligence, if any, was the proximate cause of plaintiff’s injuries under

a charge including the principle of res ipsa loquitur”); Sinkovitz v. Peters Land Co.,

5 Ga. App. 788, 793 (64 SE 93) (1909) (finding that plaintiff “had made a prima facie

case [under res ipsa loquitur] which should have been submitted to a jury”).1

      1
        Cf. Tuggle v. Helms, 231 Ga. App. 899, 904 (499 SE2d 365) (1998) (“Res
ipsa loquitur allows a jury to draw an inference of the negligence alleged and, if the
requirements of the maxim are met, bars summary judgment for the defendant.”)

                                           9
      As our Supreme Court has noted, the doctrine of res ipsa loquitur warrants an

inference of negligence that affords a plaintiff “an opportunity to claim at the hands

of the jury an inference drawn from facts which he may rely upon as proof of that

which the law requires him to prove.” Palmer Brick Co. v. Chenall, 119 Ga. 837, 844

(47 SE 329) (1904).

      As distinguished from a presumption of law, . . . which may be
      overcome by the introduction of evidence of the exercise of reasonable
      care and diligence on its part, requiring the plaintiff to produce evidence
      of the alleged negligence -- the inference which the jury may draw from
      proved facts of an unusual and extraordinary occurrence under the res
      ipsa loquitur rule is not overcome as a matter of law by evidence of due
      care. . . . It is the duty of the jury to make further inquiry as to whether
      this inference has been overcome by a satisfactory explanation. . . . It is
      for the jury to weigh this evidence along with all the other evidence and
      determine where the preponderance of the evidence lies.

(Citations omitted.) Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, 69-70

(3) (114 SE2d 517) (1960). In short,

      [t]he maxim res ipsa loquitur is of limited application, but embodies a
      perfectly sound legal principle. It is frequently difficult to determine
      when it can be safely said that the thing speaks for itself. However, the
      process by which it is to be determined whether the physical facts and
      circumstances accompanying an injury are such that the act may be said
      itself to speak the negligence of the defendant is to be worked out by the

(McMurray, P. J., dissenting); Id. at 906 (“Where the facts would permit a jury to
infer the existence of evidence under res ipsa loquitur, it is error to grant a motion for
summary judgment.”) (Eldridge, J., dissenting).

                                           10
      jury and not by the court. Not only is negligence or diligence, in every
      case where either is involved, a question solely for the jury, but it is also
      the prerogative of the jury to say in the first instance whether the
      evidence adduced to raise the inference of fact -- that an extraordinary
      and unexplained casualty authorizes an inference that the defendant was
      negligent, is sufficient or insufficient for the purpose.

(Citation omitted.) Dawson, 121 Ga. App. at 269.

      Having found that res ipsa loquitur applies in this case, “[t]he trial court should

have allowed the jury to make a determination of whether the defendant’s negligence,

if any, was the proximate cause of [Matthews’s] injuries under a charge including the

principle of res ipsa loquitur.” Dawson, 121 Ga. App. at 269. Therefore, it appears

from the trial court’s order that the court misapplied the doctrine of res ipsa loquitur

by improperly substituting its judgment in place of the jury’s on the issue of whether

Yoplait overcame the inference of negligence supplied by res ipsa loquitur.

Accordingly, the trial court’s order granting Yoplait’s motion for summary judgment

must be reversed.

      This result is not altered by Yoplait’s current argument that we may affirm the

trial court’s judgment pursuant to our de novo review because evidence in support of

the “exclusive control” element of res ipsa loquitur is lacking. Of note, Yoplait did

not raise this argument as a basis for summary judgment. See Locke’s Graphic &


                                           11
Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d

156) (2007) (“An argument not raised in the trial court is waived and cannot be raised

for the first time on appeal.”). Moreover, we express no opinion on the trial court’s

initial finding that res ipsa loquitur applies because that issue is not properly before

this Court. “To secure appellate review of the superior court’s adverse rulings on . .

. other alleged violations …, [the defendant] was required to file either a cross-appeal

to the [main] appeal or a separate notice of appeal.” State v. Nickerson, 324 Ga. App.

576, 581 (2) (749 SE2d 768) (2013); see also OCGA § 5-6-38 (a); compare Dunn v.

Five Star Dodge-Jeep-Eagle-Mazda, 245 Ga. App. 378, 379 (537 SE2d 782) (2000)

(holding that, on remand following reversal, trial court could reconsider defendant’s

arguments initially raised in the trial court). This, Yoplait failed to do.

       In sum, we conclude that the trial court misapplied the doctrine of res ipsa

loquitur. In addition, Yoplait failed to challenge, by cross-appeal or by a separate

notice of appeal, the trial court’s initial conclusion that res ipsa loquitur applies in this

case. Therefore, we reverse the trial court’s judgment granting Yoplait’s motion for

summary judgment and remand this case to the trial court for further proceedings

consistent with this opinion.



                                             12
      Judgment reversed and case remanded with direction. Dillard, P. J., and

Gobeil, J., concur.




                                     13
