318 A.2d 874 (Md.App. 1974), 421, Sheeskin v. Giant Food, Inc.

Docket Nº:421.
Citation:318 A.2d 874, 20 Md.App. 611
Opinion Judge:[10] Davidson
Party Name:Marilyn Seigel SHEESKIN, Personal Representative of the Estate of Nathan Seigel v. GIANT FOOD, INC., et al.
Attorney:[7] Linda Schwartz, with whom were Jacob Sheeskin, Robert E. Reiver and Sheeskin & Hillman on the brief, for appellant.
Case Date:April 17, 1974
Court:Court of Special Appeals of Maryland

Page 874

318 A.2d 874 (Md.App. 1974)

20 Md.App. 611

Marilyn Seigel SHEESKIN, Personal Representative of the

Estate of Nathan Seigel

v.

GIANT FOOD, INC., et al.

No. 421.

Court of Special Appeals of Maryland.

April 17, 1974

Page 875

Page 876

[20 Md.App. 612] Linda D. Schwartz, with whom were Jacob Sheeskin, Robert [20 Md.App. 613] E. Reiver and Sheeskin & Hillman, Rockville, on the brief, for appellant.

William N. Rogers and Albert D. Brault, Rockville, with whom were Carr, Bonner, O'Connell, Kaplan, Thompson & Diuguid, Rockville, on the brief, for appellees. [20 Md.App. 612]

Argued before POWERS, DAVIDSON and MOORE, JJ. [20 Md.App. 613]

DAVIDSON, Judge.

Every Friday for over two years Nathan Seigel, age 73, shopped with his wife at a Giant Food Store. This complex products liability case is before us because on one of these Fridays, 23 October 1970, Mr. Seigel was carrying a six-pack carton of Coca Cola from a display bin at the Giant to a shopping cart when one or more of the bottles exploded. Mr. Seigel lost his footing, fell to the floor and was injured.

In the Circuit Court for Montgomery County, Mr. Seigel sued both the Giant Food, Inc., and the Washington Coca Cola Bottling Company, Inc., for damages resulting from their alleged negligence and breach of an implied warranty. At the conclusion of the trial Judge Walter H. Moorman directed a verdict in favor of each defendant.

Mr. Seigel appealed to the Court of Appeals. On 11 October 1972 that Court remanded the case for further proceedings without affirmance or reversal. In a per curiam opinion the Court said:

'At the conclusion of all the evidence, the lower court, with considerable reluctance, granted Giant's and Coca Cola's motions for directed verdicts in their favor, on the theory that Uniform Commercial Code (UCC) § 2-314, Maryland Code (1957, 1964 Repl. Vol.) Art. 95B, § 2-314 postulated a breach of implied warranty only upon a completed sale to Seigel and that res ipsa loquitur was inapplicable. Unfortunately, the attention of the court seems not to have been invited bye the plaintiff either to UCC § 2-318, Code Art. 95B, § 2-318, as amended by Ch. 249 of the Laws of 1969, which now provides that under certain circumstances a warranty may be [20 Md.App. 614] implied in the absence of privity of contract or to Leikach v. Royal Crown, 261 Md. 541, 276 A.2d 81 (1971), in which this Court recognized for the first time that there may be facutal situations involving exploding bottles where res ipsa loquitur may be invoked. It may well be that additional testimony will be required to determine whether there was or was not a sale by Coca Cola to Giant and to ascertain whether there is evidence that the three criteria necessary for reliance on res ipsa loquitur, Leikach, supra, at 547 (276 A.2d 81) are present. Accordingly, we shall remand the case to the trial court without affirmance or reversal for further proceedings.'

Further proceedings were had before Judge David L. Cahoon who permitted appellant

Page 877

to reopen his case. Mr. Seigel produced additional evidence in the form of a stipulation that prior to Mr. Seigel's injury the Washington Coca Cola Bottling Company, Inc., sold to the Giant Food, Inc., the bottles of Coca Cola which Mr. Seigel ultimately selected. No additional testimony was adduced on the issue of the applicability of res ipsa loquitur under the standards set forth in Leikach. The defendants renewed their motions for directed verdicts. After review and consideration of the memoranda and oral arguments of the parties, Judge Cahoon granted the motions. His order was filed on 16 July 1973. Mr. Seigel appealed to this Court.

I

Applicability of Res Ipsa Loquitur

Appellant contends that the doctrine of res ipsa loquitur is applicable. He maintains that since the evidence shows that the possibility of damage to the bottles by a customer at the Giant is remote, his injury must have been caused either by the negligence of the bottler, Washington Coca Cola Bottling Co., Inc. or by the negligence of the retailer, Giant Food, Inc. He concludes that res ipsa loquitur applies and that he is entitled to have the jury pass on his claim.

In Joffre v. Canada Dry, Inc., 222 Md. 1, 8-9, 158 A.2d 631, [20 Md.App. 615] 635 (1960), the Court of Appeals specifically rejected the view that evidence of the explosion of a bottle of carbonated beverage in a store, without more, requires both the bottler and the retailer to go forward and produce evidence exonerating themselves from responsibility. The Court said:

'The Maryland rule is that if plaintiff offers evidence which raises two or more inferences of the cause of the harm (or negligence), for only one of which the defendant is responsible, no cause of action is made out. The test is applicable in situations in which res ipsa loquitur may be applicable. In such cases the plaintiff must show that the thing that caused the injury was in the exclusive control of the defendant. . . .

'The cases from other jurisdictions which have permitted the inference of negligence of the bottler from the exploding of a bottle most often have been those where the probability of an intervening cause of the breaking has been excluded by the testimony for the plaintiff.' (Citations omitted.)

Thus the Court established that in order to invoke the doctrine of res ipsa loquitur the plaintiff must produce evidence sufficient to show that his injury was probably caused by conditions within the exclusive control of a given defendant. Under Joffre, exclusive control in a given defendant could be shown only by evidence which excluded all possibilities as to the probable cause of plaintiff's harm other than those in the control of the particular defendant.

In Leikach v. Royal Crown, 261 Md. 541, 547-548, 276 A.2d 81, 84 (1971), the Court of Appeals reiterated the three criteria enunciated in Munzert v. American Stores, 232 Md. 97, 104, 192 A.2d 59, 63 (1963), for successful reliance on the doctrine of res ipsa loquitur:

'1. A casualty of a sort which usually does not occur in the absence of negligence.

'2. Caused by an instrumentality within the defendant's exclusive control. [20 Md.App. 616] '3. Under circumstances indicating that the casualty did not result from the act or ommission of the plaintiff.'

In explicating the meaning of the term 'exclusive control' the Court said:

'(T)he criterion of 'exclusive control' in the area of exploding soda bottles is not applied literally for, if it were, there could hardly, if ever, be a recovery. As 2 Harper and James, The Law of Torts put it in § 19.7, pp. 1086-1087:

'The requirement as it is generally applied is more accurately stated as one

Page 878

that the evidence must afford a rational basis for concluding that the cause of the accident was probably 'such that the defendant would be responsible for any negligence (such as, in the present case, (1) defects in the bottle, (2) defects caused by improper handling of the bottle, or (3) excessive carbonation) connected with it.' That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant's door. . . . " 261 Md. at 548, 276 A.2d at 84-85.

The Court then specifically held:

'(T)he burden of a plaintiff who relies on res ipsa loquitur in an exploding bottle case does not include the exclusion of every possible cause of injury other than that of the bottler's negligence, but does include the proving that there is a greater likelihood that injury was caused by the defendant's negligence than by some other case . . ..' (Emphasis added.) 261 Md. at 550, 276 A.2d at 86.

Thus the Court retreated from the stringent standard earlier enunciated in Joffre concerning the applicability or res ipsa loquitur. [20 Md.App. 617]

In applying the principles of Leikach to the instant case we must consider the claimant's evidence and all inferences that permissibly can be drawn from that evidence in the light most favorable to the claimant. Leikach, supra, 261 Md. at 545, 276 A.2d at 83; Short v. Wells, 249 Md. 491, 495, 240 A.2d 224, 227 (1968); Beach v. Woodward & Lothrop, Inc., 18 Md.App. 645, 649, 308 A.2d 439, 441 (1973); Buchanan v. Galliher and Harless, 11 Md.App. 83, 87-88, 272 A.2d 814, 816-817 (1971). At the trial Mr. Seigel testified that he intended to buy a six-pack carton of Coca Cola containing 16-ounce returnable bottles. He stated that the cartons from which he selected his six-pack were stacked in the display bin in the usual fashion: four cartons deep and five or six cartons high with sheets of self-retracting plastic forming shelves to separate the cartons vertically. The cardboard carton of the six-pack he selected was not defective in any way. There was no liquid around him or the bottles as he reached to remove the six-pack. There were no other people nearby. He did not have to reach very high to place four fingers of his right hand through both handles of a six-pack located near the top of the stack. As he lifted the carton and took it out of the bin it neither touched nor was touched by anything other than his hand. No other bottles of soft drinks fell. When he had taken three or four steps toward his shopping cart 'there was an explosion, a loud explosion and it knocked the carton out of my hand completely, there was such force to it. I tried to move and the Coca Cola was all over the floor and I couldn't get any traction with my feet because it was slippery. As I tried to go forward I couldn't, and I fell.' The manager of the Giant testified that three or four bottles were broken; that no effort was made to examine any of them; and that the broken glass was swept up by his employees and not retained.

It is apparent from the record...

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