Verdict Survey: Chicken Sandwich in Cherokee County

Remember that blog about me posting regular content in the form of verdict surveys every week?  Yeah, me neither.  Sorry for the hiatus.  This week's verdict survey involves a hot chicken sandwich.

Capsule Summary: A Cherokee County jury returned a defense verdict in a claim brought by a male plaintiff in his mid-forties in which he alleged the chicken sandwich he purchased from a Burger King was too hot and caused second degree burns to his gums.

Case Information: Frank Chancellor v. Carrols Corporation d/b/a Burger King Restaurants, Civil Action Number 2008CP1100139.

Date of Verdict: March 3, 2010.

Venue: Cherokee County Court of Common Pleas

Judge: The Honorable J. Mark Hayes, II

Factual Background: A father went with his son to a Burger King Restaurant owned by the defendant, Carrols Corporation.  The plaintiff placed a carryout order for a kid's meal for his son and a chicken sandwich for himself.  Once they were on the road, the plaintiff unwrapped the chicken sandwich and took a bite.  The bite of sandwich lodged in an area of the plaintiff's mouth where he was missing some teeth, and he alleged it caused second degree burns to his gums.

Allegations and Procedure:  Plaintiff filed his lawsuit in the Cherokee County Court of Common Pleas.  He alleged a cause of action for breach of warranty of merchantability on grounds that the sandwich was too hot.  The defendant argued that customers wanted their sandwiches to be hot.  They also argued the plaintiff's actions were inconsistent with his allegations, especially by the fact that he did not seek treatment from his doctor for the alleged injury.

Experts: None listed.

Alleged Damages:  Plaintiff was a married male in his mid-forties.  He was employed by General Electric.  He alleged $1,500 in past medical special damages.

Disposition: After 15 minutes of deliberation, the jury returned a defense verdict.

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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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How I Fry a Turkey

Yesterday, I mentioned that I wrote a summary for a friend awhile back of how I fry a turkey.  I'm not saying this is the best way to fry a turkey, but this is how we roll at the South Carolina Products Liability Law Blog when it comes to turkey frying.

I have also learned some lessons about how to save some time on the clean-up, which I share below.  Fried turkey is crazy delicious, but be careful. 

TIPS BASED ON MY EXPERIENCE

PREPARATION:

First, I would not recommend a “Butterball” turkey for frying.  I’m not sure what it is about them, but I don’t think they fry up very well (especially if you are injecting marinade). 

Makes sure the turkey is fully thawed.  Then, rinse the turkey thoroughly.  A good way to do this is to put the turkey in your fryer pot and fill the pot with water to rinse it.  Once the water fully covers the turkey, take the turkey out and note where the water level drops to, and mark it.  Now you know how much oil you need to put in the fryer pot for your turkey to be submerged.  (This is just a way to save oil; you can put in as much oil as you want, but it increases clean-up and also increases the risk of overflow, which is very dangerous).

Dry the turkey thoroughly.  If there is any water on it, it will pop when you put it in the oil.  Make sure it is good and dry.

You don’t have to do anything, as fried turkey is delicious without any “extras.”  However, I use fat-free Italian dressing as my injectable marinade.  I strain the herbs out first, and then I inject the marinade throughout the turkey.  I also coat the outside of the turkey all over with the marinade.  After this step, I coat the turkey heavily with Tony Chachere’s Cajun seasoning.  After this preparation, put the turkey in the refrigerator overnight.

FRYING:

Do the frying of the turkey on the grass somewhere.  There will be a little popping and grease residue that gets out of the pot, and if you are doing it on concrete, it will get on there.  This is not a big deal, as it will wear off.  However, it also makes it easy to track oil into the house, which never goes well with the wife.  For this reason, I do it in my backyard on the grass.  Also, do it away from your house.  Plenty of people have burned their houses down while frying a turkey, so you don’t want to be one of them.  You don't have to be 100 yards away from your home, but the point is not to do it in your garage.  A back patio away from the house or in the yard is fine.

I use peanut oil.  I can’t speak to other kinds of oils.  The cardinal rule about oil is do not mix poultry and seafood oil.  Your turkey will taste fishy.  You can fry anything else with turkey (hushpuppies, vegetables, etc.).  However, if you are using oil that you have used in the past for seafood frying, my experience is you taste the seafood in the turkey.  

Before I put the bird in the oil, I give it a fresh coat of Tony Chachere's.  Some of it usually drips off overnight, so I like a good coating before putting it in the oil.  

As for the actual cooking, in my experience, the key to frying a turkey is watching the temperature and watching the time.  Generally, I fry my turkey at 325 degrees for three-and-a-half minutes per pound.  That being said, before I put the turkey in the oil, I heat it to about 350 degrees.  The reason is that when I put the cold turkey in the oil, it usually decreases the temperature a fair amount.  Therefore, I have it a little hotter at the beginning so that (hopefully) the equilibrium is about 325 degrees when the turkey is lowered in the oil.

As I cook, I compensate with more or less time depending on my ability to keep the temperature at 325.  If it gets too hot, I turn the burner off until the temperature comes down, and I may reduce the fry time a bit to compensate.  If it gets too cold, I turn the burner up and may add some frying time depending on how long it takes to get it back to 325.  The point is to watch your gauge and try to keep it around that temperature, and compensate as needed.   

When the turkey is ready, lift it out and set it on some paper towels to strain off.  I usually just let it sit outside on the paper towels for about 15 minutes to cool and drip off oil.  Then I slide it off the lowering tool into a pan, take it inside, and pick it off the bone.

If I am frying multiple things over a few days, I don’t bother with cleaning the oil out of the pot.  I just put it in a safe place to cool and store until the next day.

CLEAN-UP AND STORAGE OF OIL

I've always read that oil is good for a year, and I've practiced that and never had any issues.  I find turkeys get better with every fry because the oil is good and seasoned.

When you are done frying for good and want to clean up, I've found the following to be the easiest way:

Let oil cool completely.  Get someone to help you, and have one person hold an oil funnel while the other pours the oil out of the pot and back into the original container.  Try to keep from spilling the oil outside the funnel, because if you do, it can get on the side of the container in which you are storing the oil.  If this happens, you now have to clean up the container (in addition to everything else you are cleaning).  Lowe's sells turkey frying peanut oil in big containers.  I would recommend trying to buy it in one of those big containers because it makes clean-up easier.  If you have four or five containers of oil (as opposed to one large container), then you have to keep refilling.  This creates more and more chance to get the oil on the outside of the containers and increase clean-up time.  If you have one big container, then you can just tip the pot and pour until it is all out.

Unless you have large "chunks" of residue, I wouldn't bother much with filtering the oil.  All the big stuff sinks to the bottom anyway, so when you get to the end you can decide if you want to keep what's at the bottom (i.e., the seasoning) or pour it off.  I usually pour everything back into my container.  It makes for better-seasoned oil. 

For cleaning the pot, get some Dawn and a good brillo pad or other steel wool.  I would do this outside…you won't score points with your better half if you do it inside. 

If you have hot water outside, that’s awesome.  If not, rinse the pot with some cold water to get the big residue out, and do a quick scrub.  This is to get the big stuff.  Pour out the cold water, and then fill the pot with water again and put it on your burner.  Use the burner to heat the water nice and warm/hot.  Then, I use the pot as a basin to clean my lowering tools, thermometer, scooper, etc.  Then, I scrub the interior and exterior of the pot and lid really good with the water in it, scrubbing hard.  Then I pour off that hot water, and probably repeat a last time with cold water. 

I’m not going to lie: the clean-up is a pain.  It usually takes me about 30 minutes to an hour.  You don't have to use hot water, but it seems to clean better and it takes longer just using cold water (i.e., you usually have to repeat it a couple more times).

(Because the clean-up takes a bit, I take advantage of every time I use my turkey fryer.  I will fry a turkey, a chicken, some hushpuppies, and maybe some other food to freeze). 

I store my oil inside until the next use.  I've kept it outside before in a storage room, and it got very cold.  I never had a spoilage issue from storage temperature, but it is probably a better practice to store it inside.  

I hope this is helpful.  It has always worked for me.

It's Turkey Frying Season

I'm an avid turkey fryer.  I don't know who first came up with the idea of taking one of the leanest, healthiest meats and dunking it in a vat of hot peanut oil, but I salute you sir. 

I also always enjoy seeing this Allstate commercial around Thanksgiving.  I like the matter-of-fact way that Dennis Haysbert (a/k/a President Dennis Palmer and Pedro Cerrano) talks about how plenty of people will burn their houses down when they try to fry a turkey.  My suspicion is that this most often occurs when someone uses too much oil, and it overflows when they lower the turkey into the pot (not that I have any experience with that...).  If you want to see a great illustration of the danger (and in the interest of providing equal time to State Farm), check out this video. 

Does this risk make a turkey fryer a defective and unreasonably dangerous as a product?  Of course not.  However, you do need to be careful.  WMFB news ran a nice story last week about turkey fryer fires (and other deep fryer claims).  Unfortunately, South Carolina ranks tenth in the country when in comes to deep fryer fires. 

So...when you fire up that oil this season, do be careful.  You can find a link to the article here, and the actual article is cut and pasted below.  (A few years back, I did a summary for a friend of how I fry a turkey.  If I can dig it up, I'll try to post it tomorrow).

SC ranks in top 10 for Thanksgiving cooking fires

Posted: Nov 14, 2012 12:07 PM EST Updated: Nov 15, 2012 4:30 AM EST

While turkey frying is very popular, it puts people at risk for fryer related fires and injuries.

SOUTH CAROLINA (WMBF) - Thanksgiving produces more cooking fires, according to insurance claims, than any other day of the year, and South Carolinians are starting many of them.

According to State Farm claims data, grease and cooking-related claims more than double on Thanksgiving Day compared to an average day in November. South Carolina ranked in the top 10 states for cooking fires according to claims made over the past five years.

While turkey frying is very popular, it puts people at risk for fryer related fires and injuries. In fact, fire departments across the U.S. respond to more than 1,000 fires each year where a deep fryer is involved.

The National Fire Protection Association reports that deep fryer fires cause more than $15 million in property damage each year, not to mention the burn dangers related to splattered grease.

According to State Farm, the top 10 states for grease and cooking-related claims on Thanksgiving Day for the past five years (2007-2011) are:

1. Texas
2. Illinois
3. New York
4. Ohio
5. Florida
6. California
7. Louisiana
8. Pennsylvania
9. Minnesota
10. South Carolina

Copyright 2012 WMBF News. All rights reserved.

(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 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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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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'Tis the Season for Good Food...And Warnings

During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.

You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.

But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.

(1) Common Allergies

The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.

For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.

Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.

(2) Products Consumed Over a Long Period of Time

Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.

Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.

From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.

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