Thursday, December 15, 2011

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

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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 loquitorId. 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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