Ball Corp. v. George

• Decision Date: 28 September 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: 27 Ariz.App. 540,556 P.2d 1143
• Parties: BALL CORPORATION, a foreign corporation, Appellant, v. Chester GEORGE and Irene George, his wife, Appellees. 2734.
• Court: Arizona Court of Appeals

Page 1143

556 P.2d 1143

27 Ariz.App. 540

BALL CORPORATION, a foreign corporation, Appellant, v. Chester GEORGE and Irene George, his wife, Appellees.

No. 1 CA-CIV 2734.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 28, 1976.

Rehearing Denied Nov. 3, 1976.

Petition for Review Denied Dec. 7, 1976.

Jennings, Strouss & Salmon by Gary L. Stuart, Neil Vincent Wake, Phoenix, for appellant.

Skousen, McLaws & Skousen, P.C. by Richard E. Skousen, Mesa, for appellees.

FROEB, Judge.

This is an appeal from a judgment in favor of appellees, Chester George and Irene George, and against appellant, Ball Corporation (Ball), for injuries received by Irene George when a soft drink bottle exploded.

Irene George purchased a 32 ounce bottle of Pepsi-Cola from a beverage retailer in mid-August, 1970. The bottle was placed in a cardboard beverage carton and was stored next to the refrigerator in the George house. It remained undisturbed until August 22, 1970, when, as Irene George was reaching down for the bottle, it exploded, flinging particles of glass into her left eye. She was immediately rushed to a hospital, but doctors were unable to save the eye.

Mr. and Mrs. George brought a lawsuit against Ball, the manufacturer of the bottle, Pepsi-Cola Metropolitan Bottling Co., Inc. (Pepsi-Cola), the bottling company, and Food City, Inc. (Food City), the retailer. Due to a covenant not to sue between the Georges, Pepsi-Cola and Food City, Pepsi-Cola and Food City were dismissed from the lawsuit and the trial proceeded against Ball as the sole defendant. Although several grounds for recovery were alleged by the Georges in their complaint, the case was submitted to the jury solely on the basis of strict liability in tort under the Restatement (Second) of Torts § 402(A). The evidence as to liability presented at trial consisted primarily of testimony by Irene George and two experts, Dr. Julian R. Frederick and Dr. Richard E. Mould. The jury returned a verdict in favor of the Georges in the amount of $125,000.00.

Under the doctrine of strict liability in tort, one engaged in the business of selling a product is liable or physical injury to a user or consumer of that product if it is sold in a defective condition which is unreasonably dangerous and if it reaches the user or consumer without substantial change in the condition in which it was sold. O. S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968).

Ball's primary contention on appeal concerns the sufficiency of the evidence presented to prove the defective condition of the bottle at the time it left Ball's manufacturing plant. During the trial, Irene George testified that the bottle had not been subjected to any unusual blows or rough handling after it was purchased from Food City. She also testified that she had barely touched the bottle when it exploded.

Dr. Frederick testified that he had studied the glass fragments of the Pepsi-Cola bottle in order to reconstruct the fracture pattern of the glass. He stated that the information derived from the fragments enabled him to form an opinion as to the cause of the bottle failure, and that the failure had been due to an explosion at a point on the bottle at which the glass was defectively thin. He testified that the glass thickness of the Pepsi-Cola bottle ranged from .074 inches at the point of the failure to as much as .150 inches for thicker portions of the bottle on the side opposite the point of failure. He further testified that, in his opinion, a glass bottle with a minimum thickness of less than .080 inches, designed for three and one-half volumes of gas pressure, was defective. Finally Dr. Frederick testified that the bottle had been weakened by a bruise caused by normal handling of the bottle.

Ball argues that Dr. Frederick's quantitative opinion as to minimum bottle thickness was not based on either reliable scientific tests performed by him, or on an accurate interpretation of information found in scientific journals. It further argues that Dr. Frederick's testimony as to the existence of a prior bruise caused by normal handling was based solely on conjecture and, as such, was inadmissible.

As to Dr. Frederick's quantitative opinion regarding the defective minimum thickness of the Pepsi-Cola bottle, Ball does not object to Dr. Frederick's overall qualification as an expert or his ability to properly give such an opinion. It does object, however, to the manner in which Dr. Frederick arrived at his estimate of a safe minimum glass thickness.

Dr. Frederick testified that his estimate was based on his study of scientific reports written on the subject, his experience in analyzing the structural properties of glass, and tests which he had performed. When questioned as to the nature of the tests, he testified that he had applied sufficient force to break various glass bottles and then measured the wall thickness of bottles at the point of the break. He did not measure the amounts of force applied to break the bottles. Ball contends that his failure to measure the amounts of force applied to the bottles makes the tests meaningless and testimony concerning the results inadmissible. It relies on American Honda Motor Co. v. Smith, 110 Ariz. 593, 521 P.2d 1139 (1974) and Carrizoza v. Zahn, 21 Ariz.App. 94, 515 P.2d 1192 (1973) to support its contention. However, the opinions by the experts in both American Honda and Carrizoza were based on assumptions which were not solely products of their training and expertise. Instead, the assumptions were founded upon facts which either had not been introduced into evidence, or had no foundation. In that respect, they differ from the testimony of Dr. Frederick, whose expert opinion as to defective minimum thickness was based on a personal analysis of the Pepsi-Cola bottle fragments, combined with his training and experience in analyzing the structural properties of glass. In addition, the testimony of Mrs. George as to how the explosion occurred was in evidence and could properly be considered by Dr. Frederick in formulating his opinion under both of the authorities cited by Ball. Any objections to his testimony under such circumstances go to the weight and not the admissibility of his opinion. Similarly, Ball's objection to Dr. Frederick's testimony of a prior bruise to the bottle is also without merit. Dr. Frederick testified that an explosion such as occurred in this case probably was the result of static fatigue of the glass. He said that static fatigue would not occur unless the glass suffered a bruise at some time. He was unable to identify the prior existence of a bruise from the glass fragments he studied, but he testified that, had the force which caused the bruise been greater than that encountered in normal handling, the fracture pattern of the glass would have been noticeably different. Again, the testimony was a product of Dr. Frederick's training and expertise, coupled with his analysis of the glass fracture pattern and the testimony of Irene George as to how the explosion occurred. Again, the objection goes to weight, not admissibility.

We note that attorneys for Ball engaged Dr. Frederick in extensive cross-examination and put the testimony of their own expert, Dr. Mould, into evidence to refute the opinions of Dr. Frederick. The jury was presented with two distinct theories as to the cause of the explosion and the facts on which each of those theories were founded. The jury chose to accept the theory...