Hyams v. King Kullen Grocery Co.

Decision Date22 November 1961
Citation223 N.Y.S.2d 263,32 Misc.2d 920
PartiesLorraine HYAMS and Richard Hyams, Plaintiffs, v. KING KULLEN GROCERY COMPANY, Inc., Pepsi Cola Metropolitan Bottling Company, Inc., United Beverage, Defendants.
CourtNew York City Municipal Court

Santangelo, Morrison & Martorano, New York City, for plaintiffs by Anthony R. Martorano, New York City.

John A. Anderson, Rockville Centre, for defendants.

ABRAHAM R. MARGULIES, Justice.

Plaintiff-wife, a customer in the King Kullen Grocery Company, Inc. store, was injured by the explosion of a beverage bottle containing Pepsi Cola. The bottle in question was on the shelves of the defendant, King Kullen, when it exploded. It appears that the beverage was bottled by the defendant, Pepsi Cola Metropolitan Bottling Company, Inc., and then delivered to the defendant, King Kullen, at its place of business. Plaintiff-wife sustained injury to face resulting in scar.

The basis for the general rule that a manufacturer of a bottle or the bottler that fills it with charged soda water may be held responsible to an ultimate consumer by reason of negligence has been established by two leading cases on the subject. [MacPherson v . Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Smith v. Peerless Glass Company, 259 N.Y. 292, 181 N.E. 576, 577. Also see 'Manufacturers Liability to Persons other than the immediate Vendees', 24 Va.Law Review 134.] As stated in the Smith case wherein the plaintiff was injured by the explosion of a soda water bottle, 'There emerges, we think, a broad rule of liability applicable to the manufacturer of any chattel, whether it be a component part or an assembled entity. Stated with reference to the facts of this particular case, it is that, if either defendant was negligent in circumstances pointing to an unreasonable risk of serious bodily injury to one in plaintiff's position, liability may follow though privity is lacking.'.

The plaintiff's theory is that either the defendant, King Kullen Grocery Company, Inc. or the defendant, Pepsi Cola Metropolitan Bottling Company, Inc. was negligent, or both. This negligence may be proved by circumstantial evidence which is described by the courts as res ipsa loquitur. In Foltis, Inc. v. City of New York, 287 N.Y. 108, on page 115, 38 N.E.2d 455, on page 459, 153 A.L.R. 1122, the Court defined the words res ipsa loquitur.

'The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon indecisive evidence where complete proof is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available.'

This definition was also used in two earlier cases. [Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859, and Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36.] Further, as the Court said in the Foltis case, 'We must determine whether the rule of res ipsa loquitur may be applied, in accordance with those principles, to the proof tendered in this case; whether, upon 'a common-sense appraisal of the probative value' of the circumstantial evidence, measured in part by the test of whether it is the best evidence available, inference of negligence is justified.'

There appears to be some confusion surrounding this subject, and it can be said that part of the difficulty is caused by the loose use of terms without adequate definition. The other major problem is the failure of the Courts to take into consideration changes in circumstances. The use of the phrase res ipsa loquitur has not met with universal approbation. [Plumb v. Richmond Light & R. R. Co., 233 N.Y. 285, 135 N.E. 504, 25 A.L.R. 685.] What may not have been a res ipsa loquitur case years ago may now by reason of present day experiences become one. The earlier cases dealing with aviation took the position that there was not yet such common knowledge and experience of its hazards as to permit such a conclusion from the unexplained crash of a plane. It is only the more recent decisions which have held that the safety records now established justifies the application of res ipsa loquitur. [See Prosser--Law of Torts, 1955, Page 203]

There are relatively few reported cases in New York which deal with the doctrine of res ipsa loquitur in the law of exploding beverage bottles and none where the plaintiff was injured as a result of an exploding beverage bottle which was not handled or touched by the plaintiff. It seems to me that the facts herein fit the standard as set by the Court in the Foltis case, namely, a common-sense appraisal of the probative value of the evidence and the probability that a particular accident could not have occurred without the legal wrong by either of the two defendants. The only case suggested by the defendant in New York is Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578, decided in 1947 by the Appellate Division, First Department, by a 3-2 decision, and is the only case submitted by the defendant, Pepsi Cola, as authority that res ipsa loquitur does not apply if the manufacturer is not in control of the bottle. The defendant, Ruppert, had bottled and delivered some cases of beer to a store where plaintiff was an employee, and after several days the plaintiff moved the cases and then proceeded to pick up each bottle, and while handling the sixteenth bottle it exploded, injuring plaintiff's eyes.

The majority opinion stressed the necessity of possession and control of the instrumentality. 'In this case the exploding bottle had not been in the exclusive control of the defendant for several days prior to the occurrence, and the defendant did not have exclusive knowledge of the care exercised in its control and management during that period.' [Curley v. Ruppert, supra, page 443, 71 N.Y.S.2d page 580.] This strict and literal application of the formula of res ipsa loquitur has been criticized by leading authorities in the field of torts. [Prosser--Law of Torts, 1955, Page 205; Shearman & Redfield on Negligence, 6th Edition, Page 132]

In other jurisdictions there are many cases where a defendant was responsible under such circumstances. Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 439, 247 P.2d 344, where one hour after delivery by the defendant to the plaintiff a bottle of Coca Cola exploded without having been touched by the plaintiff, and in the discussion of this case the Court referred to some fifty cases with similar facts; Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P.2d 601, and the cases cited therein; Ortego v. Nehi Bottling Works, 199 La. 599, 6 So.2d 677, where after the defendant's truck driver left some cases of root beer in the plaintiff's place of business one of the bottles exploded cutting a plaintiff on her hand without the plaintiff touching the said bottle; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A.L.R. 1090, and the cases cited therein; Riecke v. Anheuser-Busch Brewing Ass'n, 206 Mo.App. 246, 227 S.W. 631, where a plaintiff, an invitee, inspecting the defendant's factory and while standing some six feet away from a girl who was labeling bottles was injured by the explosion of a bottle.

As the Court pointed out in the Zentz case, the confusion in the application of the doctrine has been the use of the word 'control' and what is meant by the requirement that the person charged with negligence should have the exclusive possession and control of the object in question. There should be no requirement for the application of the rule that the defendant is absolved from liability after delivery of the beverage bottle to the premises of the plaintiff. Also as Prosser points out in his Law of Torts, 1955, on Page 205, 'The strict and literal application of this formula has led some Courts to ridiculous conclusions * * * and loses sight of the real purpose of the requirement in an attempt to reduce it to a fixed rule. Control, if it is not to be pernicious and misleading, must be a very flexible term. It is enough that the defendant has the right of control and the opportunity to exercise it. * * * It is enough that he is under a duty which he cannot delegate to another. * * * It would be far better and much confusion would be avoided if the idea of control was discarded altogether and if we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it.'

It is interesting to note that the minority opinion in the Curely case written by Justice Van Voorhis reasons that control is a flexible term and imposes upon the defendant an obligation to go forward with an explanation. Upon the...

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  • Copher v. Barbee, s. 8104
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 1962
    ......998, 80 N.E.2d 455, aff'g. 273 App.Div. 766, 75 N.Y.S.2d 658; Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263. See also ......
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    ...explosion under Res ipsa loquitur principles citing Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578 and Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263, revd. in part Sup., 230 N.Y.S.2d 962, affd. 20 A.D.2d 657, 246 N.Y.S.2d 575. Controlling case law establishes that......
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