Henkel v. R and S Bottling Co.

• Decision Date: 25 August 1982
• Docket Number: No. 65650,65650
• Citation: 323 N.W.2d 185
• Parties: Richard E. HENKEL and Christy M. Henkel, as Guardians For Richard E. Henkel, Jr., a Minor; Richard E. Henkel, an Individual; and Christy M. Henkel, an Individual, Appellants, v. R AND S BOTTLING COMPANY, an Iowa Corporation, Appellee.
• Court: Iowa Supreme Court

Page 185

323 N.W.2d 185

36 A.L.R.4th 405

Richard E. HENKEL and Christy M. Henkel, as Guardians For Richard E. Henkel, Jr., a Minor; Richard E. Henkel, an Individual; and Christy M. Henkel, an Individual, Appellants, v. R AND S BOTTLING COMPANY, an Iowa Corporation, Appellee.

No. 65650.

Supreme Court of Iowa.

Aug. 25, 1982.

Thomas F. Bell and Thomas J. Vilsack of Thomas F. Bell Law Office, and Michael A. Riepe, Mount Pleasant, for appellants.

Robert V. P. Waterman and Charles E. Miller of Lane & Waterman, Davenport, and Edward W. Dailey of Edward W. Dailey Law Offices, Burlington, for appellee.

Considered en banc.

SCHULTZ, Justice.

Plaintiffs, Richard E. and Christy M. Henkel, suing individually and on behalf of their one-year-old son (Richard, Jr.), appeal from the verdict and judgment in a products liability action against defendant, R and S Bottling Company. Plaintiffs' claim for damages for an injury to their son--occasioned when an unopened bottle containing a carbonated beverage was broken, allegedly causing a fragment of glass to be propelled into the child's eye--was denied. Plaintiffs assert three assignments of error. We find merit in one of them and reverse and remand for a new trial.

In January 1979 Mrs. Verda M. Henkel, the child's paternal grandmother, purchased an eight-pack of sixteen-ounce, returnable bottles of 7-Up at a grocery store in Mt. Pleasant. The 7-Up had been bottled and distributed by defendant, an Iowa corporation located in Burlington. Mrs. Henkel took the bottles to her home and placed them in her dining room on the floor near a refrigerator.

On February 9 she was caring for the child in her home. At the time, the child was almost a year old; he could crawl and stand, but he could not walk. While Mrs. Henkel was in the kitchen preparing lunch, she became aware that the child was playing with the carton of 7-Up in the adjoining dining room. After a minute or two, the child apparently tipped the eight-pack over. One of the bottles broke, and the force of the carbonated beverage propelled glass fragments for some distance. One of these fragments struck the child's right eye, causing substantial and permanent damage.

Defendant does not design or manufacture beverage bottles; as a distributor, it fills the bottles, after adding carbon dioxide to carbonate the liquid, and transports them to retail outlets. It reclaims returnable bottles and washes and inspects them. The inspection is done visually, electronically, and by a pressure process designed to cause defective bottles to break.

Plaintiffs commenced a products liability action against defendant in the Henry District Court. Their action was premised on the alternative claims of negligence and strict liability. At the close of plaintiffs' evidence, defendant moved for a directed verdict on plaintiffs' separate counts of negligence in both bottling and distributing the product. The trial court sustained defendant's motion, and the case was submitted to the jury under the theory of strict liability. Plaintiffs' claim for damages was denied, and plaintiffs appealed. They contend the trial court erred in: (1) sustaining defendant's motion for a directed verdict; (2) instructing the jury on misuse of a product; and (3) refusing to admit into evidence as an exhibit a report by the United States Consumer Product Safety Commission on the hazards of carbonated-beverage bottles.

I. Negligence. Plaintiffs assert that there is sufficient evidence in the record to engender a jury question on the issues of whether defendant was negligent in either failing to provide a warning of the inherently dangerous nature of its product or failing to adopt a proper design for the product. Plaintiffs therefore contend that the trial court erred in sustaining defendant's motion for a directed verdict.

In ruling on a motion for a directed verdict, the trial court must view the evidence "in the light most favorable to the party against whom the motion was made." Iowa R.App.P. 14(f)(2). Every legitimate inference that reasonably may be deduced from the evidence must be afforded the nonmoving party; and if reasonable minds can differ as to how the issue should be resolved, a jury question is engendered. Schiltz v. Cullen-Schiltz & Associates, Inc., 228 N.W.2d 10, 17 (Iowa 1975). Generally, questions of negligence and proximate cause are for the jury; only in exceptional cases may they be decided as a matter of law. Iowa R.App.P. 14(f)(10). When substantial evidence has been presented in support of each element of a claim, a motion for a directed verdict must be overruled. Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 744 (Iowa 1977). With these principles in mind, we turn to the merits of this issue.

A. Warning. Plaintiffs contend that there is substantial evidence in the record to support their claim that defendant negligently failed to provide a warning of its product's inherently dangerous explosive quality. They maintain that defendant knew of this characteristic of an unopened bottle of 7-Up and should have foreseen misuse of the product by children. Plaintiffs therefore assert that defendant should have warned consumers of the danger and instructed them to avoid conditions giving rise to it.

We have recognized that the duty of care placed on a supplier of a product may include an obligation to warn of danger caused by use of the product. In West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 209 (Iowa 1972), we adopted Restatement (Second) of Torts § 388 (1965), which provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

(Emphasis added). Whether a warning is required is to be determined by standards of reasonable care. Cooley v. Quick Supply Co., 221 N.W.2d 763, 771 (Iowa 1974). In West we enumerated factors for use in determining whether reasonable care requires a warning.

Among them are the likelihood or unlikelihood that harm will occur if the vendee does not pass on the warning to the ultimate user, the trivial or substantial nature of the probable harm, the probability or improbability that the particular vendee will pass on the warning, and the ease or burden of the giving of warning by the manufacturer to the ultimate user.

197 N.W.2d at 211.

A supplier of goods, therefore, is not required to provide a warning of danger when the reasonable probability of injury is remote, slight, or inconsequential. Restatement section 388(a) requires a warning only when the supplier knows or should know the product "is or is likely to be dangerous." (Emphasis added). "Likely" is defined as meaning "[p]robable" or "[i]n all probability." Black's Law Dictionary 834 (5th ed. 1979). Thus, for a jury question to be engendered on the issue of whether a warning is required, there must be substantial evidence that the supplier in all probability knew, or had reason to know, the product was dangerous or that there was a likelihood of danger.

The record reveals that some degree of danger attends the breakage of an unopened carbonated-beverage bottle. When the bottle breaks, the carbon dioxide that is combined with the beverage during the carbonation process is rapidly released, producing an effect that is explosive-like in nature and may propel fragments of glass created by the breakage. Defendant was obviously aware that some danger of flying glass exists when bottles break, since bottles are tested in three ways--including a high-pressure technique--and workers are protected by goggles and shields on the machinery.

Carbonated beverages in returnable bottles, such as the one in this case, are popularly consumed in this nation. An expert witness estimated that ten billion bottles are manufactured annually. Normally, these bottles break because of structural defects or impact with another object. Expert witnesses for both parties agreed that the bottle at issue broke because of impact with another object.

This case is different from those in which there is a duty to give adequate warning or provide instructions for use because the product inside a container is flammable, caustic, or highly explosive. See, e.g., Shuput v. Heublein, Inc., 511 F.2d 1104, 1106 (10th Cir. 1975) (jury question on duty to warn generated in strict liability case when a plastic bottlestopper spontaneously ejected at high velocity because of generally unknown explosive quality of champagne); Kapp v. E. I. Du Pont De Nemours & Co., 57 F.Supp. 32, 38-39 (E.D.Mich.1944) (fact question on duty to warn not engendered when bottle of ammonia exploded due to exposure to heat); Burke v. Almaden Vineyards, Inc., 86 Cal.App.3d 768, 773, 150 Cal.Rptr. 419, 422 (1978) (jury question presented in strict liability case based on lack of warning when eye injury was caused by cork popping from bottle because of generally unknown explosive propensity of champagne); Gall v. Union Ice Co., 108 Cal.App.2d 303, 310, 239 P.2d 48, 55 (1951) (jury question on duty to warn presented when drums containing sulphuric acid, which had tendency to become explosive if not kept cool, exploded injuring plaintiff); Tucci v. Bossert, 53 A.D.2d 291, 294, 385 N.Y.S.2d 328, 330 (1976) (jury question engendered on failure to warn of latent explosive qualities of can of Drano, which exploded when children...