Cole v. Great Atlantic & Pac. Tea Co.

• Decision Date: 19 December 1964
• Citation: 254 N.Y.S.2d 929,44 Misc.2d 694
• Parties: Anna COLE, Plaintiff, v. The GREAT ATLANTIC & PACIFIC TEA CO., Inc., and Associated Coca-Cola Bottling Plants, Inc., Defendants.
• Court: New York Supreme Court

Page 929

254 N.Y.S.2d 929

44 Misc.2d 694

Anna COLE, Plaintiff, v. The GREAT ATLANTIC & PACIFIC TEA CO., Inc., and Associated

Coca-Cola Bottling Plants, Inc., Defendants.

Supreme Court, Herkimer County.

Dec. 19, 1964.

Fred J. O'Donnell, Ilion, for plaintiff.

Kernan & Kernan, Utica, for defendant, The Great Atlantic & Pacific Tea Co., Inc., Leighton Burns, Utica, of counsel.

Hubbard, Felt & Fuller, Utica, for the defendant, Associated Coca-Cola Bottling Plants, Inc., Kenneth W. Fuller, Utica, of counsel.

RICHARD D. SIMONS, Justice.

This action is brought by the plaintiff to recover for personal injuries sustained while a patron of the defendant supermarket The Great Atlantic & Pacific Tea Co. in Ilion, New York on November 9, 1962. While in the section of the store reserved for bottled beverages, plaintiff was injured when she was bending over to reach for a bottle of beer. She heard an explosion benind her, felt a sharp stinging sensation on the back of her legs and observed blood flowing from her legs. Immediately to her rear was a section of shelves on which was stacked 'Bubble-up', a carbonated soda pop bottled by the defendant Coca-Cola Bottling Plants, Inc. Fragments of a broken 'Bubble-up' bottle were found on the floor behind her after the accident. Plaintiff rested on this proof. Defendants offered proof attempting to show due care on their part. The jury returned a verdict in favor of the plaintiff against both defendants and they now move to set the same aside on the grounds that the verdict is contrary to law and against the weight of evidence.

The case was submitted to the jury under the doctrine of res ipsa loquitur. That rule requires that plaintiff show that the agency which caused the injury was under the exclusive control of the defendant, and secondly, that the accident is one which would not ordinarily occur without negligence on the part of defendant. George Foltis, Inc. v. City of New York, 287 N.Y. 108, 114, 117, 38 N.E.2d 455, 459, 460, 153 A.L.R. 1122; Bressler v. New York R. T. Corp., 270 N.Y. 409, 413, 1 N.E.2d 828, 829; Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925, 52 L.R.A. 972.

The defendants contend that the bottle which exploded was not within the exclusive control of either one of them and that, therefore, the doctrine does not apply.

The question of control is one that has been viewed differently by the Courts. It has been defined as requiring possession in Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578. However, there are other New York cases which are more clearly in accord with the prevailing rules of the Courts outside this State which hold that the requirement is only the right to control or manage and not necessarily exclusive, physical possession. This principle has been approved, if not enunciated, in Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, aff'd 304 N.Y. 821, 109 N.E.2d 609, and Hyams v. King Kullen Grocery Company, 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 A.D.2d 657, 246 N.Y.S.2d 575.

While the rule of the Curley case may exonerate the bottler, it is unavailing to the retailer in view of the holdings in Day v. Grand Union, supra, and Hyams v. King Kullen, supra. The briefs on appeal in those cases specifically urge the rule of Curley v. Ruppert, supra, on behalf of the supermarket without success and the application of res ipsa loquitur was approved. Control or the right to control, supervise or manage is sufficient to invoke the doctrine against the supermarket. When lacking, as in the case of the bottler, the proof must proceed on the basis of affirmative showing of negligence. When the right to control exists, res ipsa loquitur applies even though there may be interference with the bottles by the customers of the supermarket. Robinson v. Atlantic and Pacific Tea Company, 184 Misc. 571, 54 N.Y.S.2d 42, aff'd 269 App.Div. 977, 59 N.Y.S.2d 290; Higgins v. Ruppert, 124 App.Div. 530, 108 N.Y.S. 919; Perito v. Sunrise Supermarket Corp., 33 Misc.2d 627, 229 N.Y.S.2d 667.

The bottler clearly did not have control or even the right to control. It had yielded possession, control and supervision when it delivered the product to the A & P's loading dock some days before the accident.

There was a continuing duty upon the bottler owing to plaintiff and others similarly situated to use reasonable care to supply its product in a bottle free of defects and to use reasonable tests to determine this. Smith v. Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576; Mueller v. Teichner, 6 N.Y.2d 903, 190 N.Y.S.2d 709, 161 N.E.2d 14; Torgesen v. Schultz, 192 N.Y. 156, 84 N.E....