Friday, December 23, 2011

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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