Holiday Season Food Law (Part IV): The food poisoning cases

(This is the fourth post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See also part I, part II, and part III). 

As Christmas is behind us and New Year's Day is around the corner, it seems appropriate to begin bringing this series to a conclusion by talking about food that just flat out makes you sick. 

This Saturday evening, people around the world will ring in 2012 with all sorts of food and beverage, and undoubtedly some of them will just become sick for no apparent reason (other than maybe imbibing a bit too much).  There is another line of cases in South Carolina where the lawsuit relates to food that just made someone sick...no fragments of glass, no exploding bottles, no animal carcasses in the food.  The plaintiff just eats/drinks something and gets food poisoning of some variation.  If you are one of these unfortunate individuals, this post is dedicated to you.

In Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641 (1940), a man became sick after drinking a soft drink he believed contained some kind of poisonous substance.  Only after analysis by some chemists was it determined that the soft drink contained copper sulphate (which apparently is used by farmers to protect crops from rust).  7 S.E.2d at 642.  The plaintiff sued for negligence (in bottling of the soft drink, inspection, etc.), and the jury awarded $2,000.  Id.  On appeal, the defendant argued (1) there was no evidence it bottled the drink or that it contained the substance at the time of bottling, and (2) there was no evidence from which a jury could conclude it was negligent.  Id. at 643.  In a detailed opinion, the court pointed out that the only evidence of negligence was a violation of the applicable Pure Food Statute at the time (i.e., making it negligence per se if there is some poisonous or deleterious substance in the food).  Id.  It did not matter that the plaintiff failed to plead the statute in his Complaint, and "neither knowledge of the contamination nor negligence in fact is a material element of the offense."  Id.  It is negligence per se under the law, and this alone is sufficient for consideration by the jury.  Id. at 645.  However, the court reversed the case and remanded for a new trial.  Id. at 645-46.  Why?  Because the trial judge excluded testimony by the defendant the instance at issue was the only time that copper sulphate had been found in the soft drink bottled by the defendant.  Id. at 646.  In short, if the plaintiff can get the case to the jury by just showing violation of the statute, the defendant also should be able to offer testimony relevant to the standard of care, and failure to allow this testimony required a new trial.

Yummy processed and potted meat.  Love it.  My dad's generation sure did, as I often heard stories of "eating Vi-enner sausages in the field" while growing up.  I will pass, thank you very much (especially after reading Upton Sinclair's The Jungle in my high school history class).  Nevertheless, there are three South Carolina cases I have found involving potted/processed meat, and reading them is pure entertainment.  

Housand v. Armour & Co., 173 S.C. 268, 175 S.E. 516 (1934) involved consumption of "oil sausage" sold in 50-pound cans and retrieved via "an old fork which hung from the counter" in the retail shop."  175 S.E. at 517.  This is a strange case in which the "defendant" Armour was found to not actually be the right defendant, but they answered and went to trial anyway.  Ultimately, the judgment against the defendant corporation was reversed based on lack of evidence of negligence and improper expert testimony.  Id. at 518.  The court affirmed the judgment against the local defendants based on how they handled the meat (i.e., not keeping it refrigerated).  Id. at 518-20.  Hollis v. Armour & Co., 190 S.C. 170, 2 S.E.2d 681 (1939) also involved oil sausages, and the offending sausages in this case were sold from cans that had rusted.  The concept of preemption rears its head in this early case, as one of the defendant's arguments was that the State Pure Food Statute interfered with federal acts and regulations.  2 S.E.2d at 684-85.  The court disagreed, and it also believed the plaintiff had adequately pled a violation of the State Pure Food Statute so as to sustain the $1,500 award by the jury to the plaintiff.  Id. at 685.  Finally, Boylston v. Armour & Co., 196 S.C. 1, 12 S.E.2d 34 (1940) involved a ham that had a "bluish-greenish cast" that is "not unusual" in a cooked, smoked ham.  12 S.E.2d at 37.  (Uhhh...okay).  Contrary to the holding in Hollis, the Boylston court reversed the trial court and remanded the case for a new trial on grounds that the applicable State Pure Food Statute did not apply; it only applied to manufacture or sale or offer for sale of food within the state, and there was evidence that the meat at issue was prepared and sold out of state.  Id. at 38. 

Poor Armour.  These cases are a mixed-up potted mess, and reading them can be exhausting.  The above summary does not do them justice.  If you have an interest in potted meat cases, I encourage you to read them for yourself.

Last but not least, Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969) involved a three-year-old child who became sick after drinking a soft drink that contained something "dark in color and slick and slimy to the touch."  A pathologist determined that the substance was yeast, and he testified that certain yeasts can cause certain diseases.  Id. at 582, 167 S.E.2d at 574.  The problem was that the plaintiff's doctor testified there had been a rash of viruses at the time, and he could not say whether the plaintiff's sickness was from the virus or from the yeast in the soft drink.  Id. at 583, 167 S.E.2d at 574.  Although the court recognized a violation of the Pure Food and Drug Act in effect at the time constituted negligence per se, the plaintiff still had to show proximate causation. 

We have held that where the cause of plaintiff's injury may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has failed to carry the burden of establishing that his injury was the proximate result of defendant's negligence.

Id. at 575, 167 S.E.2d at 584.  Based on this law, the court reversed the judgment because plaintiff failed to prove proximate causation.

This is the last group of cases in this series.  In my next (concluding) post for this series, I will do my best to synthesize my blogs on food and beverage case law and bring some "order" to them.

Happy New Year!

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Merry Christmas!

Merry Christmas from the South Carolina Products Liability Law Blog.  We set a record this year...kids woke us up at 5:30 a.m.  I am sure that naps will be in order at some point during the day...for everyone.

Wherever you are celebrating, I hope you enjoy this special day, and thank you for following my blog.  I look forward to the new year and plenty of blogging in 2012.

Merry Christmas!

Holiday Season Food Law (Part III): The fly in the soft drink cases.

 (This is the third post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See also part I and part II). 

I was just a young'un when the Christmas version of Coca-Cola's "Hilltop" commercial came out.  You know the one I am talking about (above).  When I hear those children of the 70s croon that they would like to buy the world a Coke, it evokes memories of me tearing into my Evel Knievel motorcycle or my Stretch Monster on Christmas morning.  (Thanks Mom and Dad!).

But I digress.  As nostalgic as the commercial is, it is also appropriate for another group of cases in South Carolina, e.g., where a plaintiff sips that carbonated, caramel-colored goodness and also gets a mouthful of yellow jacket, fly, or other previously living thing.  Which brings us to our next bucket of cases for survey...

♪ ♫  On the third day of Christmas, my true love gave to me...A SOFT DRINK WITH A DEAD ANIMAL IN IT! ♪ ♫

On August 14, 1930, the South Carolina Supreme Court filed three similar cases involving a dead something-or-other in a bottle: Tate v. Mauldin, 157 S.C. 392, 154 S.E. 431 (1930) (dead rat/mouse carcas), Culbertson v. Coca Cola Bottling Co., 157 S.C. 352, 154 S.E. 424 (1930) (dead yellow jacket), and Burnette v. Augusta Coca-Cola Bottling Co., 157 S.C. 359, 154 S.E. 645 (1930) (dead "bug").  Tate appears to be the foundation of South Carolina's food products liability law and is the earliest "dead animal in a bottle case."  In Tate, the South Carolina Supreme Court set forth the fundamental principles of South Carolina's food law.  See generally 154 at S.E. 433-34.  The courts in Culbertson and Burnette then cited to Tate as support for their holdings.   

Culbertson is the most interesting of these three cases.  In Culbertson, a man took a drink of Coke and ingested a dead yellow jacket.  154 S.E. at 425.  At trial, he argued the defendant bottling company was negligent in bottling the beverage and failed to properly inspect it.  Id.  The jury awarded him $200 (which, by the way, is $2,586 by today's dollars according to this website).  On appeal, the defendant argued the trial judge should have directed a verdict because it claimed there was no evidence to support the product was sold by the defendant.  Id.  The court denied this argument based on testimony from a retail employee that the beverage at issue was purchased from the defendant.  Id.  Defendant also argued that the real reason plaintiff became sick was because he drank some whiskey to relieve his condition.  Id.  The court denied this argument because there was testimony that the whiskey was actually ingested after emitting the yellow jacket, and whether the whiskey or yellow jacket made the man sick was a jury question.  Id.  Finally, the appellate court affirmed the jury charges used by the trial court and affirmed that there was sufficient evidence of negligence to submit the case to the jury.  Id.

Floyd v. Florence Nehi Bottling Co, 188 S.C., 98, 198 S.E. 161 (1938) involved a plaintiff who swallowed dead flies in a bottle of Orange Crush.  The jury awarded $1,000 to the plaintiff at trial.  198 S.E. at 162.  The court stated that injury alone is not proof of negligence.  Id. at 163.  Instead, the plaintiff has the burden of proving negligence through direct or circumstantial evidence.  Id.  There was evidence that the bottler's inspector "inspected" 30 bottles per minute, or 14,000 bottles per day.  The jury was entitled to consider whether or not this was the proper level of care in the inspection process.  Id.  The court ultimately affirmed the judgment.  Id. at 164.

In Hobbs v. Carolina Coca-Cola Bottling Co., 194 S.C. 543, 10 S.E.2d 25 (1940), a man bought a Coke and drank about one-fourth of it before realizing that there was some "vile...poisonous...polluted...foul...contaminated...revolting substance" therein, resembling decomposed cockroaches or other bugs.  10 S.E.2d at 26.  He became sick and sued for damages.  Id.  At trial, the jury awarded the man $350, and the defendant bottling company appealed.  Id.  Instead of focusing on negligence, this case really focuses on special damages.  Id. at 27-28.  The plaintiff claimed at trial that he had to hire someone to do work that he otherwise would have done but for his sickness, and he presented the amount paid for the work as "damages" to the jury.  Id. at 27.  The defendant objected on grounds that the plaintiff had not pled these special damages in his Complaint.  Id.  The appellate court agreed with the defendant, and it reversed the judgment and remanded the case for a new trial. Id. at 28.  "[W]here damages do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state the particular damage sustained to in order to introduce testimony in regard to it.  The rule is to avoid surprise."  Id. at 27.  Even though there was sufficient evidence to show violation of the applicable food statute in effect at the time (constituting negligence per se), there had to be a new trial because of the admission of the evidence of special damages that had not been pled in the Complaint.  Id. at 28-29.

Finally, Cohen v. Allendale Coca-Cola Bottling Co., 291 S.C. 35, 351 S.E.2d 897 (Ct. App. 1987) involves similar facts (also involving an insect).  The jury awarded the plaintiff $4,000 in actual damages and $1,000 in punitive damages.  Id. at 37, 351 S.E.2d at 898.  The defendant bottling company appealed the trial court's failure to direct a verdict in its favor or grant judgment notwithstanding the verdict.  Id.  First, the defendant claimed there was evidence to support  the insect came to be in the bottle after plaintiff opened the drink in his office.  Id. at 37, 351 S.E.2d at 899.  Second, the defendant claimed there was no direct evidence of any negligent act or omission during the bottling and inspection process.  Id.  The court concluded there was sufficient circumstantial evidence for a jury to reasonably find the insect was in the bottle prior to the plaintiff opening it (e.g., the insect was at the bottom of the bottle and not floating, it was decomposed, and it happened on a day when plaintiff had not observed insects in his office).  Id.  Once the court admitted evidence showing the insect was in the bottle before opening it, plaintiff had also presented evidence of negligence.  Id. at 39, 351 S.E.2d at 899.  The court also believed the facts were sufficient to send the case to the jury on a breach of warranty theory.  Id.  "The presence of the insect in the bottle was evidence from which the jury could find [defendant] had breached its implied warranty that the soft drink was fit for ordinary consumption."  Id. 

However, a second issue in Cohen was whether the verdict was excessive in light of the facts.  Id. at 39, 351 S.E.2d at 899-900.  The plaintiff's only proven out-of-pocket damages were four or five dollars for prescription nausea medicine.  Id.  He had no doctor bills, lost wages, or physical impairment.  Id. at 39, 351 S.E.2d at 900.  The court set forth the following as the applicable rule:

In a personal injury case, the amount to be awarded for the injury and any resulting pain and suffering cannot be determined with mathematical precision and is necessarily a matter of judgment on the facts of each case which must be left to the jury's discretion.  Where the amount of the verdict bears a reasonable relationship to the character and extent of the injury and the damage sustained, it is not excessive.

Id. at 40, 351 S.E.2d at 900.  The court agreed that the award of actual damages may have been liberal, but it could not conclude that the trial judge abused his discretion in denying the motion for a new trial, or that the award bore no rational to the evidence presented.  Id.  However, the court reversed the award of punitive damages.  Id.  For recovery of punitive damages, there must be evidence that a defendant's conduct is wilful, wanton, or in reckless disregard of the plaintiff's rights.  Id.  The court noted that punitive damages involve deliberate intention or present consciousness of wrongdoing, and there was no evidence that the defendant intended to furnish the plaintiff with a soft drink containing an insect.  Id. at 40-41, 351 S.E.2d at 900.  Therefore, the court ruled that the punitive damages award should have been set aside by the trial court and reversed the award.

So...I'd like to teach the world to sing, in perfect harmony . . . I'd like to buy the world a Coke, and keep it free from...bees.

Happy Holidays All!

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Holiday Season Food Law (Part II): Careful with that salmon (salmon?)...Santa.

(This is the second post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See part I here).

There are certain "non-traditional" movies I associate with Christmas, and I love this scene from "Trading Places" where Dan Akroyd plays a down and out Santa Claus who is swiping holiday goodies from a Christmas party.  My favorite part is when he steals a nice piece of salmon, stuffs it into his jacket, and then pulls it out later to feast on it while riding a bus.

The question is, what happens if -- when he bites into that salmony, beard-encrusted goodness -- he bites down on some hard substance or object and breaks a tooth?  Let's discuss this "bucket" of cases.

♪ ♫  On the second day of Christmas, my true love gave to me...A CHRISTMAS COOKIE WITH A TACK IN IT! ♪ ♫

Most of these cases involve alleged negligence by the manufacturer in either the manufacture or post-manufacture inspection of the food product.  The earliest case I have found in this group of cases is Delk v. Liggett & Myers Tobacco Co., 180 S.C. 436, 186 S.E. 383 (1936). 

Delk involved a man who bought some chewing tobacco and, after putting some in his mouth, bit down on a carpet tack.  (Ouch).  The nerve of the tooth died, the tooth became infected, and he could not consume anything but liquids for ten days.  186 S.E. at 348. Plaintiff brought a lawsuit, and the defendant moved at trial for non-suit based on (1) absence of a contractual relationship with the plaintiff, and (2) lack of proof of negligence.  Id. at 385.  The motions were denied and the plaintiff won $500.  Id. The defendant appealed based on the same aforementioned grounds, as well as an erroneous charge by the judge.  Id. With regard to the privity of contract issue, the court held the trial court was not in error because chewing tobacco qualifies as a "food," and liability will exist regardless of privity of contract.  Id. at 385-86. However, the court agreed with the defendant that there was lack of proof of negligence.

It is true that negligence may be established by circumstantial evidence as well as by positive evidence; but it is also a well settled precept founded upon the soundest principles of justice that a verdict must be supported by the evidence and not based upon conjecture, speculation, and surmise. Has [plaintiff] adduced testimony, positive or circumstantial, sufficient to show negligence on the part of appellant? We think not. The plug of tobacco was carried around in his pocket until he had taken four or five chews of same, and there was no proof of an impression made by the tack on or in said plug to show that when the tobacco was pressed the tack became a part of said plug. It is entirely possible that this tack could have become imbedded in this plug during the time that it was in possession of the jobber, retailer, or respondent.

Id. at 387.  On this basis, the court remanded the case to the trial court with instructions to enter judgment in favor of the defendant.  Id. at 388.  Although the defendant's third ground for appeal (the erroneous jury charge) was largely moot, the court found the charge was not erroneous in light of its determination that tobacco qualified as a "food."  Id.

Delk is somewhat of an anomaly in this line of cases because it involved tobacco.  This is significant because although the court believed tobacco was "food" for purposes of its negligence analysis, it did not believe that tobacco should be classified as "food" for purposes of the Pure Food and Drug Act in effect at the time.  Id. at 386.  This is a significant distinction because subsequent cases involving more common food products involve an additional statutory line of analysis when assessing negligence.

For example, both Irick v. Peoples Baking Co., 187 S.C. 238, 196 S.E. 887 (1938) and McKenzie v. Peoples Baking Co., 205 S.C. 149, 31 S.E.2d 154 (1944) involved plaintiffs who bit into cakes that had glass (Irick) and a piece of steel (McKenzie) embedded in them.  At trial, the defendants successfully moved for non-suit based on a lack of evidence of common law negligence (which was granted), and the plaintiffs appealed.  In both cases, the appellate courts reversed on grounds that the Pure Food and Drug Act in effect at the time applied to the food products, that presence of the foreign material constituted violations of same, and that a violation constituted per se negligence that required the cases to be submitted to the jury.  As stated by the McKenzie court:

[I]nclusion of a harmful foreign substance in cake prepared for human consumption (food) is a violation of our Pure Food Statute and negligence per se, and that Irick's case, supra, was correctly decided and should be adhered to, and it is. Nonsuit should not have been granted upon a contrary conclusion, as it was. Assuming that the facts in evidence, other than that involved in the appeal, warranted submission of the case to the jury (and the case was argued and heard upon such assumption), it should have been so submitted.

However, as this law continued to evolve, proof of a statutory violation was not an automatic "slam dunk" for a plaintiff.  In Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976), the plaintiff bit into something hard in a pack of Cracker Jacks and brought suit for negligent manufacture and violation of the applicable Food and Cosmetic Act at the time.  At trial, the court granted the defendant's motion for non-suit because there was no proof of negligence at common law or under the applicable Act.  Id. at 425, 229 S.E.2d at 263.  On appeal, the plaintiff admitted there was no proof of negligence but (again) cited to violation of the Act as per se negligence.  Id.  In this case, the court affirmed the trial court based on the evidence. 

In brief, the testimony presented by appellant was simply that, while driving and eating popcorn, she bit a hard unidentified object or substance, causing pain, and subsequently she found that the tooth was cracked. The dentist could not determine from an examination of the tooth what caused it to crack but, based upon the statements of appellant, he was of the opinion that the break was caused by the tooth striking some hard object. It was inferable that no foreign object could have gotten into the box of popcorn after it was opened by appellant.

Id. at 426, 229 S.C. at 264.  Based on this lack of evidence, there was no testimony to show that plaintiff's injury was proximately caused by an adulteration of the Cracker Jacks.  Id. at 427, 229 S.C. at 264.

Finally, Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (1998) involved a plaintiff who bit into a biscuit that appeared to have gravel or rock in it.  She sued for negligence, breach of warranty and strict liability and was awarded $60,000 (against Sara Lee) and $7,600 (against co-defendant Western Steer).  Id. at 463, 502 S.E.2d at 923-24.  Sara Lee appealed and argued that the plaintiff received a triple recovery against it on all three causes of action and should have been forced to elect remedies.  Id. at 463-64, 502 S.E.2d at 924.  The court affirmed the trial court because (1) Sara Lee did not object to the jury charges or verdict form, and (2) no election of remedies was required because only one recovery was sought and obtained.  Id. at 464, 502 S.E.2d at 924.  Sara Lee also argued that the trial court erred in denying its motion for directed verdict and judgment notwithstanding the verdict on the negligence cause of action. Id. The court also affirmed the trial court in reviewing this argument based on the "two issue" rule.  Id. "Pursuant to that rule, when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the appellate court will affirm unless the appellant appeals all causes of action."  Id.  Sara Lee did not appeal the breach of warranty or strict liability issues, and the verdict was supportable by these causes of action.  Id. at 464-65, 502 S.E.2d at 924.  In a footnote, the court said that even if the "two issue" rule did not apply, it would still affirm because Sara Lee offered no evidence that the hard substance was natural to the ingredients of the finished product, and the jury could infer a lack of due care from the rock/gravel's presence.  Id. at 465, 502 S.E.2d at 924.

Wow...all of that was a mouthful...of carpet tacks, glass, steel, and rock/gravel. 

Happy Holidays!

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Holiday Season Food Law: "It's a beautiful duck...but it's smiling at me."

Last Christmas, I enjoyed blogging about South Carolina warnings law and food products, including posting the infamous dry turkey scene from the holiday classic, "Christmas Vacation."  As the holiday season is upon us, I thought it would be appropriate to revisit this topic on a broader scale by doing a survey of South Carolina products liability law in the context of case law involving food and drink.  The Chinese turkey scene from "A Christmas Story" seemed like an appropriate way to begin this topic.  Can Ralphie's dad recover if he is traumatized by a turkey "smiling" at him? 

(Before we tackle this age old question and dive into this area of law, allow me one caveat.  This analysis does not include a review of "food" cases where the food at issue was consumed by livestock, pigs, household pets, or other non-humans.  Although I do not deny that these cases implicate products liability law, that is a post for another day).

South Carolina's general food/beverage case law appears to break down into the following categories: exploding beverage bottles, "hard" substances in food, food containing a wayward insect, and otherwise spoiled/adulterated food that leads to someone becoming sick.

Let's tackle the first topic in today's post.

♪ ♫  On the first day of Christmas, my true love gave to me...A BOTTLE THAT EXPLODED!  ♪ ♫

These cases are harder to come by in the era of plastic bottles, but I found three South Carolina cases involving glass bottles that exploded and resulted in injury.  The theories of liability include some combination/variation of the following: (1) selling a bottle that is likely to explode from excess pressure; (2) selling bottles likely to explode because of some defect in the bottle; (3) failure to take the necessary precautions in filling the bottles at the manufacturing plant; (4) failing to provide a bottle of sufficient strength; (5) failure to use due care in the manufacture of the bottle; and (6) failure to use due care in the filling of the bottle of liquid.  See, e.g., Boyd v. Marion Coca-Cola Bottling Co., 240 S.C. 383, 384, 126 S.E.2d 178, 179 (1962).

For example, in Merchant v. Columbia Coca-Cola Bottling Co., 214 S.C. 206, 51 S.E.2d 749 (1949), the plaintiff was was injured from fragments of glass after one of four bottles she picked up exploded.  She alleged a negligence claim against the defendant by reason of some bottle defect or because of excessive gas pressure.  Id. at 208, 51 S.E.2d at 750.  After presentation of the evidence at trial, the defendant moved for a non-suit.  The trial court granted the motion because it believed there was insufficient evidence to submit the case to the jury without invoking the doctrine of res ipsa loquitur, which is not applicable in South Carolina.  Id.   (For your information, the doctrine is still not recognized today.  See, e.g., Watson v. Ford Motor Co., 389 S.C. 434, 452-53, 699 S.E.2d 169, 179 (2010) ("We also note that Respondents may not rely solely on the fact that an accident occurred to prove their products liability case under a negligence theory since South Carolina does not follow the doctrine of res ipsa loquitur.")). 

However, the South Carolina Supreme Court reversed the trial court on appeal.  The basis for the reversal was that the appellate court found that the plaintiff had provided evidence that both prior and subsequent to the plaintiff's injury, bottles of Coca Cola bottled and distributed by the defendant to the retailer had burst and exploded under similar circumstances.  Merchant, 214 S.C. at 211, 51 S.E.2d at 751-52.  Specifically, the store clerk testified that the store had nothing to do with the actual handling of the crates of soft drink other than to remove the top crate when it became empty.  Id. at 209, 51 S.E.2d at 750-51.  He also testified bottles had exploded prior to the plaintiff's incident, and in the same manner, and another bottle from the same shipment exploded about two hours after plaintiff's incident.  Id.  Another employee provided similar corroborating testimony.  Id. at 209, 51 S.E.2d at 751. 

Based on the evidence, the court was not concerned with whether to apply res ipsa loquitor.  Id. at 210, 51 S.E.2d at 751.  Instead, it believed that the circumstantial evidence was sufficient to take the case to the jury on the issue of negligence.  Id.  Citing to a North Carolina case, the court stated the one exploding bottle is not enough to make a case for neglience.  Id.  However, quoting from the same North Carolina case, the court adopted the following as a "sound rule of law" in cases involving multiple exploding bottles:

But in cases where compensation is sought for injury caused by such explosion, the rule established by this court is that when it is made to appear that other bottles filled by the same bottler, under similar circumstances, about the same time, have exploded, there is afforded some evidence of negligence sufficient to be submitted to the jury, as it would thus form the basis for the permissible inference that the bottler had not exercised that degree of care required of him under the circumstances.  And this court has been careful, before permitting plaintiff's case to be submitted to the jury, to require that plaintiff offer evidence of other instances of bottles filled by defendant exploding under "substantially similar circumstances and reasonable proximity in time."

Id. at 210-11, 51 S.E.2d at 751 (quoting Davis v. Coca-Cola Bottling Co. of Asheville, 228 N.C. 32, 44 S.E.2d 337 (1947) (citations omitted).  A later case, Boyd v. Marion Coca-Cola Bottling Co., 240 S.C. 383, 126 S.E.2d 178 (1962), had similar facts and reached the same holding and rule of law. 

Together, Merchant and Boyd are cases where the bottle exploded and glass fragments injured the plaintiff.  However, there is another case where the explosion of the bottle itself is not what caused the plaintiff's injury.  Instead, the plaintiff was injured in a typical "slip and fall" case while cleaning up the mess from the exploding bottle. 

For a fascinating case that is a treasure trove of information on proximate causation, foreseeability, intervening acts, contributory negligence, and assumption of risk, be sure to look at Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989).  This case is way too "meaty" to summarize in this post (and I plan to make it a future "Case Brief").  However, rest assured that it includes heavy analysis of these concepts to basically hold that a bottler can be liable if a consumer is injured while cleaning up the mess from a bottle that has exploded.  I am not sure that I agree with the holding, but it is an interesting opinion.  The nutshell is that the court held that the consumer's attempt to clean up the spill was a foreseeable response and did not break the chain of causation.  Id. at 520-22, 389 S.E.2d at 156-57. Furthermore, contributory negligence was not applicable based on the nature of the product liability claims.  Id. at 522-24, 389 S.E.2d at 157-58.  Finally, the consumer's choice to remove the hazard created by the spill was not a voluntary assumption of risk; the consumer really had no choice but to attempt the clean-up.  Id. at 524-25, 389 S.E.2d at 158-59.

Be on the lookout for the next post, where I will address the dreaded "hard substance" in food products.

Happy Holidays!

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