Cerepak v. Revlon, Inc., 42936

• Decision Date: 11 August 1972
• Docket Number: No. 42936,42936
• Citation: 200 N.W.2d 33,294 Minn. 268
• Parties: Chester CEREPAK, individually, and as father and natural guardian of Renee Cerepak, a minor, Respondent, v. REVLON, INC., Appellant, J. C. Penney, Inc., Defendant.
• Court: Minnesota Supreme Court

Page 33

200 N.W.2d 33

294 Minn. 268

Chester CEREPAK, individually, and as father and natural guardian of Renee Cerepak, a minor, Respondent, v. REVLON, INC., Appellant, J. C. Penney, Inc., Defendant.

No. 42936.

Supreme Court of Minnesota.

Aug. 11, 1972.

Syllabus by the Court

In an action against a manufacturer for personal injuries resulting from the breaking of a glass container, the plaintiffs' burden of proving negligence in the manufacture of the container is not met by resort to the theory of res ipsa loquitur and without affirmative evidence from which a jury may reasonably infer that the container was in fact defective when the manufacturer surrendered possession to the retailer.

Mahoney, Dougherty, Angell & Mahoney, Minneapolis, for appellant.

Rerat, Crill, Foley & Boursier, and David K. Wendel, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and MURPHY, ROGOSHESKE, and PETERSON, JJ.

PETERSON, Justice.

This appeal involves a products liability action by Chester Cerepak and Renee Cerepak, a minor, against Revlon, Inc., for injuries sustained from a broken bottle of Revlon's 'Hi and Dri' liquid deodorant purchased at a retail store of J. C. Penney, Inc. ¹

The deodorant bottle, manufactured by defendant Revlon, Inc., was a roll-on bottle, 8 inches high, with a plastic cap screwed to the threaded top of the bottle. Renee had used the deodorant bottle on at least two occasions during the several weeks it was in her possession and had noticed from prior use that the cap was difficult to unscrew because the liquid deodorant was sticky. On the occasion of her injury, she made two attempts to twist the cap with her right hand, holding it waist high in her left hand, and on a third and more forceful effort than usual, the neck of the bottle broke. A tendon in a finger of her right hand was severed by the broken bottle.

Plaintiffs alleged that the bottle was defective and that defendant Revlon was negligent in its manufacture and design. The issues submitted to the jury for its special verdict related only to Revlon's negligence in the manufacture of the bottle, together with plaintiff Renee's negligence in its use. The jury found that Revlon was negligent and that plaintiff Renee was not negligent.

Plaintiffs offered no affirmative evidence of Revlon's negligence in the manufacture of the bottle. No expert testimony was offered to establish any defect in design or manufacture of the bottle. The factual issue was submitted to the jury solely under a res ipsa loquitur instruction, on the theory, stated in the trial court's post-trial memorandum, that the injured user need only show 'that the bottle appeared to be a normal bottle fit for usage in a customary manner, as it should be used and as a manufacturer could foresee it would be used, and that she did not put it to an abnormal use.'

Plaintiffs' only evidence, aside from the broken bottle itself, was the testimony of plaintiff Renee and her mother as to the circumstances of its purchase and use, which was to the effect that she alone used the deodorant bottle and that at no time had she pried, bumped, or dropped the bottle. There was no evidence as to how long the bottle was in the possession of the retailer; plaintiff's mother was not sure that the retail clerk delivered it to her in a box, but she thought that it was taken from a display case and handed to her packed in tissue paper.

Revlon's evidence, on the other hand, consisted of the expert testimony of Marvin W. Dynes, manager of the Department of Glass Technology at the University of Minnesota, who had examined the broken bottle. He testified that his examination revealed no defects in the bottle but that he observed a chip out in the top surface of the bottle, corresponding to markings on the cap, which he concluded was from the insertion of some object between the top glass ledge of the bottle and the cap. Dynes was of the opinion that an attempt had been made to pry loose the cap with such object, resulting in chipping the bottle and so weakening it as to cause its breakage upon the application of little force.

Revlon had moved to dismiss at the conclusion of plaintiffs' case for failure to establish a prima facie case of negligence. The motion was denied. Revlon made a post-trial motion for amended findings of fact and conclusions of law or for a new trial. The motion was denied. This appeal is from that order.

The dispositive issue is whether plaintiffs met their burden of proof on the factual issue of negligence where the issue was submitted solely on theory of res ipsa loquitur, absent any affirmative evidence that the deodorant bottle was negligently manufactured. Plaintiffs had the burden of proving that there was a defect in the bottle which caused it to break under normal use, that this defect was present when defendant surrendered possession of the bottle to the retailer, and that the defect was the result of defendant's negligence in its manufacture. Although the burden of proof has been less strict in cases of spontaneous explosion of carbonated beverage bottles, Holkestad v. Coca-Cola Bottling Co., 288 Minn. 249, 180 N.W.2d 860 (1970), and Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 188 N.W.2d 426 (1971), than in the case of other glass containers, Kerr v. Corning Glass Works, 284 Minn. 115, 169 N.W.2d 587 (1969), no case based on negligence has wholly removed this burden of proof or held it discharged merely by proof that the plaintiff had not mishandled the product. ²

The reason for less strictness in adhering to this burden of proof in exploding bottle cases is more pragmatic than conceptual. Dean Page Keeton, author of Products Liability--Proof of the Manufacturer's Negligence, 49 Va.L.Rev. 675, 686, after reviewing some of the defective bottle cases, concludes that courts have been less strict in requiring proof of negligence in cases involving explosions of beer bottles and carbonated beverage bottles. It is his view that 'the...