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 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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Case Brief: Soaper v. Hope Industries, Inc., 309 S.C. 438, 424 S.E.2d 493 (1992)

Today's Case Brief is for Soaper v. Hope Indus., Inc., 309 S.C. 438, 424 S.E.2d 493 (1992).  Soaper involved a color film processor and printer, and it is significant because it illustrates a merger of “fitness for particular purpose” with the warranty of merchantability under its facts.

FACTUAL BACKGROUND: Plaintiff purchased a color film processing machine from Defendant for use in his fast photo business.  309 S.C. at 439, 424 S.E. 2d at 494.  The machine malfunctioned over a period of three years, and Plaintiff ultimately had to close his business.  Id.

PROCEDURE: Plaintiff sued Defendant alleging (1) breach of express warranty, (2) breach of the implied warranty of merchantability, and (3) breach of the implied warranty of fitness for particular purpose.  309 S.C. at 439, 424 S.E. 2d at 494.  At trial, Plaintiff proceeded solely on the cause of action for breach of implied warranty of fitness for a particular purpose.  The jury returned a verdict for Plaintiff for $84,783.40 (i.e., the full value of the machine and its component parts).  Id.  The South Carolina Court of Appeals affirmed, finding ample evidence that "the goods were defective so as to be unfit for their intended use in Soapers fast photo business."  306 S.C. 531, ----, 413 S.E.2d 38, 40 (Ct. App. 1992).  Defendant sought rehearing, which the Court of Appeals denied.  309 S.C. at 439, 424 S.E. 2d at 494.  The South Carolina Supreme Court granted certiorari on the issue sought for re-hearing by Defendant.  Id.

ISSUE(S): "Does a purchaser establish a warranty of fitness for a particular purpose when goods, purchased solely for their ordinary purpose, are found to be unfit for any and all purposes?"  309 S.C. at 439, 424 S.E. 2d at 494.

DISPOSITION:  "[W]here a product is not fit for any purpose, it is not fit for its particular purpose.  Accordingly, the Court of Appeals opinion is affirmed as modified."  309 S.C. at 441, 424 S.E.2d at 495.

RULES AND OPINION: The implied warranty of fitness for a particular purpose arises under the Uniform Commercial Code, S.C. Code section 36-2-315 (1976).  309 S.C. at 439, 424 S.E. 2d at 494.  Defendant maintained that this warranty applies only when the buyer has a particular purpose for a product other than its ordinary/contemplated use.  Id. at 440, 424 S.E.2d at 494.  The court recognized that there was authority for this position but declined to follow it.  Id., 424 S.E.2d at 495.  The court referred to comment 2 to section 2-315, which states that "a contract may of course include both a warranty of merchantability and one of fitness for a particular purpose."  Id.  Section 2-317 also requires that warranties arising under the UCC "be construed as consistent with each other and as cumulative."  Id. 

When Plaintiff purchased the product, he made known to Defendant that his particular purpose for the machine was fast film developing.  Id. at 441, 424 S.E.2d at 395.  When it failed in that purpose, it was both unmerchantable and unfit for its particular purpose.  Id.

We hold that, where the particular purpose for which a product is purchased is also the ordinary or intended purpose of the product, the warranties of merchantability and of fitness for a particular purpose merge and are cumulative, such that a plaintiff may proceed upon either theory. 

Id. at 440, 424 S.E.2d at 495.  This holding accords with other jurisdictions.  Id. at 441, 424 S.E.2d at 495.

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