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.