Bardy v. Sears, Roebuck and Co., 82-2314

• Decision Date: 14 December 1983
• Docket Number: No. 82-2314,82-2314
• Citation: 443 So.2d 212
• Parties: William B. BARDY, Jr., and Sarah Bardy, his wife, Appellants, v. SEARS, ROEBUCK AND COMPANY and Employers Insurance of Wausau, a Mutual Company, Appellees.
• Court: Florida District Court of Appeals

Page 212

443 So.2d 212

William B. BARDY, Jr., and Sarah Bardy, his wife, Appellants, v. SEARS, ROEBUCK AND COMPANY and Employers Insurance of Wausau, a Mutual Company, Appellees.

No. 82-2314.

District Court of Appeal of Florida,

Second District.

Dec. 14, 1983.

Jan Paradise of Law Offices of Patrick Dekle, Tampa, for appellants.

E.N. Fay, Jr., of Mann & Fay, Bradenton, for appellees.

HOBSON, Acting Chief Judge.

William Bardy, Jr., and Sarah Bardy, his wife, plaintiffs below in an action against Sears, Roebuck & Company ("Sears") and its insurer, Employers Insurance of Wausau ("Wausau"), alleging, inter alia, that Mr. Bardy sustained permanent injury to his hearing from an explosion of a Sears car battery as a result of Sears' negligence, appeal a final judgment rendered in favor of Sears and Wausau following a jury trial wherein the court refused the Bardys' request to instruct the jury on the doctrine of res ipsa loquitur. We affirm.

Mr. Bardy related at trial that on the afternoon of November 18, 1975, he drove his 1973 Ford Mercury to a Sears automotive store because his new Sears battery was not functioning properly. After testing the new battery inside the service garage, a Sears employee advised Mr. Bardy that a loaner battery would have to be installed for temporary use until his new battery could be fixed. Mr. Bardy did not observe the loaner battery being installed and did not know who installed it. After the battery was installed, a Sears employee drove the car out of the garage and shut the engine off. Mr. Bardy was told to return in two days for his new battery.

Mr. Bardy then drove away in his car and, after shopping at a grocery store, arrived home. He parked the car in his driveway and locked it. The next morning he tried several times to start the car, but each time he tried the engine died out after idling for only a few seconds. Thinking that he had flooded the engine, he let the car sit in the driveway for the remainder of the day. That evening he again attempted to start the car, but got the same results. He then decided to check whether the battery was functioning properly by testing the lights, horn, and various other electrical components. All indications were that the battery was working right. However, when he pushed the off switch for the front lights, they would not shut off. He then walked around to the front of the car to disconnect the battery cables from the battery in order to shut the lights off. Upon pulling the hood latch located either underneath the front bumper or in the grill, the hook anchoring the hood down was released and the hood rose about five inches. According to Mr. Bardy,

[a]t this very second or fraction of seconds the whole God darn thing blew up.

The hood came up, and there was a terrible, big noise. Of course, I'm assuming--everyone would in my case--I sort of jumped back, and I was very lucky because the acid that came off went the other way, and the loud explosion was so loud that I, frankly, was dumbfounded for a few seconds.

Mr. Bardy later noticed that a large portion of the top of the battery had exploded away. He also observed two of the battery's caps on the roof of a garage-type enclosure 20 feet from the car. However, the car started the following morning with the damaged battery. He then drove the car back to the Sears automotive store and had the loaner battery replaced with the repaired, new battery.

Each side introduced an expert witness at trial to testify as to the probable cause of the explosion. Robert Whitker, a full professor of chemistry at the University of South Florida with a Bachelor of Science degree in Chemistry and a Ph.D. in Inorganic Chemistry, testified for the Bardys. He conceded at the outset of his testimony that he did not have any special knowledge or personal experience with respect to the cause of car battery explosions. Nevertheless, based upon a hypothetical question formulated from the facts adduced from Mr. Bardy's testimony, he posited that the battery was not operating properly at the moment of the explosion. He was of the opinion that a very rapid chemical reaction between hydrogen and oxygen resulted in the explosion. Later, he tendered that friction can produce enough energy to ignite a mixture of hydrogen and oxygen inasmuch as friction causes heat. However, he stated that it would be "pure speculation" to say exactly what triggered the explosion.

Everett Wilson, an employee of the Globe Battery Division of Johnson Controls, Inc., thereafter testified for Sears and Wausau. He said that he is acknowledged as one of the top automotive electricians in the country. He pointed out that he has had personal experience with car battery explosions, both intentional and accidental. Based upon the same hypothetical question which had been posed to Dr. Whitker, he opined that the battery was not defective and that it had not been installed improperly. In his view, it was fully functional and operating normally at the time of the explosion. He arrived at this opinion because the battery started the car both before and after the explosion. He surmised that the explosion was caused by a hot ignition source. Though he admitted that it was "possible" that the ignition source was internal, he said that in such a case it is "usually" external. He explained that under cranking conditions hydrogen escapes from a car's battery and accumulates under the hood. With the introduction of an external ignition source into the immediate area of the battery, the hydrogen ignites, thereby propogating a flame into the battery's cells which results in the exploding away of the battery cover.

The Bardys' central contention on appeal is that the doctrine of res ipsa loquitur applies to the factual situation at bar because, in their view, there was no direct evidence of negligence on the part of Sears or Mr. Bardy, the explosion could not have happened in the absence of negligence, and the loaner battery was in the constructive, exclusive control of Sears at the time of the explosion. Sears and Wausau counter that the facts do not justify a res ipsa...