Holiday Case Brief and Verdict Survey: Gasque v. Heublein, Inc.

I hope you have enjoyed the holidays and are ready for the new year.  This has been one of my busiest times around the holidays in awhile, but I could not miss the opportunity to do a holiday season "food" post.  Last year, I tried to do a comprehensive series about South Carolina's products liability law in the context of food cases.  However, I missed one of the more interesting cases, and I thought it would be blogworthy at this time of year (especially in light of the amount of wine and champagne that will be consumed this evening).  Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.E.2d 556 (Ct. App. 1984) involves a cork that prematurely ejected and caused injury to a plaintiff's eye.  An Horry County jury returned a verdict for $750,000, and the South Carolina Court of Appeals affirmed the verdict.

FACTUAL BACKGROUND: Plaintiff sustained permanent loss of vision in his left eye when he was struck by the stopper and cork assembly of a bottle of Jacques Bonet Cold Duck sparkling wine.    281 S.C. at 281, 315 S.E.2d at 558.  The stopper allegedly ejected prematurely when Plaintiff's friend was twisting the wire retaining hood on the cork.  Id.

PROCEDURE: Plaintiff brought suit against the manufacturer-bottlers ("Defendants") of the sparkling wine, as well as three other defendants in the chain of distribution.  281 S.C. at 281, 315 S.E.2d at 558.  Plaintiff asserted causes of action for negligence, warranty, and strict liability, and he sought actual and punitive damages.  Id.  The case was submitted to the jury on the theories of negligence and strict liability.  Id.  The jury returned a general verdict for $750,000 in actual damages against Defendants.  Id.   

ISSUES: There were three issues on appeal: (1) whether the trial court erred in submitting the issues of negligent (a) design, (b) manufacture, (c) inspection, and (d) failure to warn; (2) whether the trial court erred in admitting into evidence a filmed experiment conducted by Plaintiff's expert; and (3) whether the trial court erred in failing to grant Defendants' motion for a new trial absolute on grounds that the verdict was actuated by passion, prejudice and caprice.  281 S.C. at 281, 315 S.E.2d at 558. 

DISPOSITION: The South Carolina Court of Appeals affirmed the trial court on all three issues.

OPINION: The appellate court addressed each of the issues in the order in which they were raised, as set forth below.

(1) Submission of Negligence Theories

With regard to negligent design, Plaintiff presented reports of studies commissioned by one of the Defendants concerning premature ejection of champagne stoppers.  281 S.C. at 282, 315 S.E.2d at 559.  The reports identified the problem of premature ejection and suggested design alternatives to correct it.  Id. at 282-83, 315 S.E.2d at 559.  Defendants' Quality Control Director also testified that before Defendants' switched from wood stoppers to polyethylene stoppers, they had no reports of injuries.  Id.  One of the reports also discussed the various problems with polyethylene stoppers versus wood stoppers.  Id.  In short, the evidence showed Defendants were aware of the problem of premature ejection, knew about feasible alternative designs, were aware that wood corks were safer, and elected to use an undrilled and uncoated polyethylene stopper to retain the festive "pop" of the cork.  Id. at 283, 315 S.E.2d at 559.  Plaintiff also presented expert testimony in support of his theory.  Id. at 284, 315 S.E.2d at 559.  The evidence was sufficient to submit the issue of negligent design to the jury.

With regard to negligent manufacture, Plaintiff presented the cork at issue and had his expert testify there was a groove on it that was distinguishable from other stoppers.  Id. at 284, 315 S.E.2d at 560.  Plaintiff's expert testified the groove was caused by improper attachment of the wire retainer to the stopper during manufacture, and this manufacturing defect contributed to premature ejection.  Id.  Based on this evidence, the court upheld submission of negligent manufacture to the jury.  Id.

With regard to negligent inspection, the court concluded that the testimony of Defendants' Quality Control Director supported submission of this issue to the jury.  Id. at 285, 315 S.E.2d at 560.  The director testified a pressure check was performed on only one out of every 30,000 to 40,000 bottles, and quality control personnel had only one or two seconds to ascertain whether or not the wire hood was properly attached to the stopper.  Id.

With regard to negligent failure to warn, the court concluded that the warning at issue was approximately 1/8 the size of the print used to advertise the product's name, and it did not mention premature ejection (just that the contents were under high pressure and that the bottle should be pointed away).  Id.  The court held the language of the warning, its placement, and print size created a jury question as to its adequacy.  Id.  The issue of negligent failure to wan was properly submitted to the jury.  Id.

(2) Admission Into Evidence of Filmed Experiment

To be admissible at trial, an experiment or test must have been made under conditions and circumstances substantially similar to those prevailing at the time of the occurrence involved in the controversy.  Id. at 286, 315 S.E.2d at 560 (citing Weaks v. South Carolina State Highway Dep't, 250 S.C. 535, 159 S.E.2d 234 (1968)).  Plaintiff's expert introduced a filmed experiment conducted by his expert where a stopper in the product at issue spontaneously ejected when the expert began twisting the wire retaining hood.  Id.  The trial judge allowed the jury to view the experiment.  Id.  Defendants argued the admission was error because the experiment utilized champagne (instead of sparkling wine), involved a different size bottle, and had different temperatures.  Id. at 286, 315 S.E.2d 560-61.  Plaintiff's expert testified the properties the experimental bottle were substantially the same.  Id., 315 S.E.2d at 561. 

The court noted that admission of evidence is a matter for the trial judge's discretion and will not be disturbed absent abuse of discretion.  Id.  The court also noted that Defendants vigorously cross examined the expert on the distinctions between the experiment and and facts of the case.  Id. at 287, 315 S.E.2d at 561.  The court held the conditions of the filmed experiment were substantially similar to those existing at the time of injury.  Id.  However, even if they were not, this issue did not warrant reversal because the experiment was cumulative of other evidence introduced by Plaintiff (including testimony of the friend who opened the bottle, experts, and the information contained in Defendants' reports about premature ejection).  Id. (citing Beasley v. Kerr-McGee Chem. Corp., 273 S.C. 523, 257 S.E.2d 726 (1979)).

(3) Excessiveness of Verdict

The court noted it has limited power to interfere with verdict amounts, which are left almost entirely to the judge and jury.  Id. at 287, 315 S.E.2d at 561 (citing Charles v. Texas Co., 199 S.C. 156, 18 S.E.2d 719, 729 (1942)).  The court cannot reduce a verdict, and it will only strike a verdict down completely if the amount is so shockingly excessive as to indicate it is the result of passion, caprice, and prejudice.  Id.  In view of the severity and permanency of Plaintiff's injury, the court did not find the verdict of $750,000 to be excessive.  Id. at 288, 315 S.E.2d at 562.  In short, there was substantial evidence concerning Plaintiff's pain, multiple surgeries, impact on vision, and change in lifestyle.  Id. at 288-89, 315 S.E.2d at 562.  Based on the evidence, the court did not find the verdict to be excessive.  It also reviewed verdicts for loss of vision cases elsewhere that were also similar to the jury's verdict.  Id.

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(Post-)Holiday Season Food Law (Part V): Summary and Conclusion

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

Well the holidays are well over (sniff, sniff)...but the Super Bowl is on the way!  So behold!  I give you the "Snack Stadium!" It is a fitting illustration for this wrap-up to my 2011 holiday series surveying South Carolina's food products liability case law.  I thought it would be a good idea to do a final post to summarize everything I learned in the survey.  There were four different posts with a variety of cases, so let's bring some order to all of it.

1.  First, it is probably helpful to have all of the cases surveyed in one spot.  Therefore, set forth below is the cite of each case mentioned in the series and a parenthetical of the alleged issue with the food/beverage.

(Exploding Bottles)

• Merchant v. Columbia Coca-Cola Bottling Co., 214 S.C. 206, 51 S.E.2d 749 (1949) (exploding bottle, plaintiff injured by fragments);
• Boyd v. Marion Coca-Cola Bottling Co., 240 S.C. 383, 384, 126 S.E.2d 178, 179 (1962) (exploding bottle, plaintiff injured by fragments); and
• Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989) (exploding bottle, plaintiff injured during slip and fall while cleaning up beverage).

(Hard Substance in Food)

• Delk v. Liggett & Myers Tobacco Co., 180 S.C. 436, 186 S.E. 383 (1936) (tobacco plug with tack in it);
• Irick v. Peoples Baking Co., 187 S.C. 238, 196 S.E. 887 (1938) (glass in piece of cake);
• McKenzie v. Peoples Baking Co., 205 S.C. 149, 31 S.E.2d 154 (1944) (piece of steel in piece of cake);
• Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976) (unidentified hard substance in Cracker Jacks); and
• Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (1998) (biscuit with rock in it).

(Insect/Animal in Beverage)

• Tate v. Mauldin, 157 S.C. 392, 154 S.E. 431 (1930) (dead rat/mouse carcas in soft drink);
• Culbertson v. Coca Cola Bottling Co., 157 S.C. 352, 154 S.E. 424 (1930) (dead yellow jacket in soft drink);
• Burnette v. Augusta Coca-Cola Bottling Co., 157 S.C. 359, 154 S.E. 645 (1930) (dead "bug" in soft drink);
• Floyd v. Florence Nehi Bottling Co, 188 S.C., 98, 198 S.E. 161 (1938) (dead flies in soft drink);
• Hobbs v. Carolina Coca-Cola Bottling Co., 194 S.C. 543, 10 S.E.2d 25 (1940) (decomposed cockroach or other bug in soft drink); and
• Cohen v. Allendale Coca-Cola Bottling Co., 291 S.C. 35, 351 S.E.2d 897 (Ct. App. 1987) (insect in soft drink).

(Food Poisoning)

• Housand v. Armour & Co., 173 S.C. 268, 175 S.E. 516 (1934) (sickness after eating "oil sausages" a/k/a "potted meat");
• Hollis v. Armour & Co., 190 S.C. 170, 2 S.E.2d 681 (1939) (sickness after eating "oil sausages" a/k/a "potted meat);
• Boylston v. Armour & Co., 196 S.C. 1, 12 S.E.2d 34 (1940) (sickness after eating  ham with a "bluish-greenish cast");

  Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641 (1940) (sickness after drinking soft drink containing copper sulfate); and
• Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969) (sickness after drinking soft drink with slimy substance determined to be yeast).

2.  Although I divided the cases by their factual circumstances (e.g. exploding bottles, insects in beverages, etc.), this decision was purely for blogging purposes.   The application of the law is very similar regardless of the different factual circumstances.  I did not think the series would be very interesting if consisted of just a recitation of the applicable law.  By dividing and categorizing the cases, I was able to survey each group over four or five blog posts.  The application of the law is fairly consistent regardless of the alleged problem with the food/beverage.

3.  If you are going to only read one case to get a general idea of the law, I would advise reading Tate v. Mauldin, 157 S.C. 392, 154 S.E. 431 (1930).  This is the earliest South Carolina case where the court admits that it has not addressed food adulteration in the past, and it is also the most widely cited in later decisions.  In Tate, the court surveys case law and sets forth the basic principles for South Carolina food products liability law.  If you want to read the most interesting case for products liability analysis, read Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989).  Although the case involves an exploding bottle, the alleged injury happened when the plaintiff slipped and fell during the clean-up.  Wallace has some interesting analysis of causation and foreseeability. 

4.  Generally, these cases are not very kind to defendants.  The general factual scenario is usually (a) plaintiff finds problem with food and is injured, (b) plaintiff brings a lawsuit, (c) plaintiff gets a verdict at trial, (d) defendant appeals on grounds that its motions for non-suit, directed verdict, etc. should have been granted, (e) the appellate court reviews the evidence, cites to the applicable food statute, and states that the alleged problem with the food is a violation of same, (f) the violation of the statute is found to be evidence of per se negligence, and (g) the appellate court affirms judgment.  Obviously, there are some exceptions as set forth in some of the surveyed cases, but the cases generally seem to follow this general fact pattern. 

That's the gist of it folks.  I may convert this survey to an article that does a better job of summarizing the law, as opposed to surveying the cases.  If/when that happens, I will let you know.

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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: "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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