Lee v. Crookston Coca-Cola Bottling Co.
| Decision Date | 04 June 1971 |
| Docket Number | COCA-COLA,No. 42083,42083 |
| Parties | Claire LEE, et al., Appellants, v. CROOKSTONBOTTLING COMPANY, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In a negligence action against defendant bottling company where plaintiffs seek recovery on the theory of res ipsa loquitur for personal injury and consequential damages resulting from the explosion of a bottle of Coca-Cola, it is reversible error to submit the issue of contributory negligence to the jury where no evidence supporting the claim of the injured party's negligence is introduced at trial and a finding of contributory negligence can be supported only by reference to an expert witness' opinion based, not on facts in the record, but on an assumed fact which the evidence would not permit a jury to find as true.
2. Where plaintiffs also plead that defendant is strictly liable in tort, and there is circumstantial evidence from which it can be inferred that it is more probable than not that the bottle was defective when it left defendant's control and that such defect, absent the injured party's own want of care or misuse of the bottle, caused plaintiffs' injury and damages, there is an evidentiary basis for submitting the issue of liability to the jury on the theory of strict liability, and the court erred in denying plaintiffs' request for such submission.
Rufer, Hefte, Pemberton & Schulze, Fergus Falls, for appellants.
Padden, Dickel, Johannson & Wall, Crookston, for respondent.
Heard before KNUTSON, C.J., and NELSON, ROGOSHESKE, PETERSON, and KELLY, JJ.
Appeal from an order denying a new trial after a jury verdict for defendant, Crookston Coca-Cola Bottling Company. The action is one for personal injury and consequential damages caused by an 'exploding' bottle of carbonated beverage, and the appeal raises questions concerning the trial court's submission of the issue of contributory negligence and its refusal to submit the issue of liability on the theory of strict liability, as plaintiffs requested. We find reversible error and grant a new trial.
Plaintiff Helen Lee, a waitress, while working at the Norman Steak House at Ada, Minnesota, was injured when a quart (26-ounce) Coca-Cola bottle exploded in her hand and a glass fragment of the bottle punctured the median nerve at the level of her right wrist. Mrs. Lee and her husband, Claire, brought this action to recover damages upon pleaded theories of breach of implied warranty, negligence, and strict tort liability. The case was tried and submitted to a jury on the theories of breach of implied warranty and of negligence under the doctrine of res ipsa loquitur. The jury returned a general verdict for defendant, presumably upon a finding either of no breach of warranty or no negligence or of contributory negligence. On this appeal, plaintiffs principally contend that the trial court erred (1) in submitting the issue of contributory negligence, and (2) in refusing to submit their claim against defendant upon the theory of strict liability in tort.
The evidence relating to the injury-producing incident is not in substantial dispute. Defendant's driver delivered a 12-bottle case of Coca-Cola and other beverages to the steak house shortly before noon on the day of the accident. 1 Using a handcart, he stacked the Coca-Cola case in the dining room area of the steak house behind a bar or counter about 2 feet from a waist-high, sliding-top-three-door-type, refrigerated cooler. The case and the bottles remained undisturbed until between 12:30 and 1 p.m., when Mrs. Lee (hereafter plaintiff) undertook to transfer the bottles from the Coca-Cola case into the cooler. Without moving the case, she grasped one bottle at a time with her right hand, moved it laterally to her right, and lowered it into the cooler. While she was lowering the third bottle into the cooler, it 'exploded' in her hand, the neck of the bottle with a cap intact remaining in her hand. According to the testimony of plaintiff and the manager of the steak house, the only two women present at the time, the bottle exploded with a 'loud bang,' which the manager heard while working in the kitchen separated from the dining area. The manager came 'running' to 'find out what was wrong.' She saw plaintiff standing by the cooler holding the cap and neck of the bottle and found glass fragments from the bottle scattered in and about the cooler and adjacent area, some being found 'under the nickelodeon machine * * * approximately * * * ten or twelve feet away' and 'some around the other end of the dining area.' Since plaintiff and the manager considered the accident of little consequence, requiring only the application of a band-aid to the wound after the bleeding had been stopped, the bottle fragments were swept up and discarded. 2
Plaintiff testified that she was 'positive' and there was 'not one bit' of question in her mind that she had not 'struck' the 'bottle on anything' as she was transferring it to the cooler. She insisted that the bottle had exploded sponstaneously while in her hand, and this testimony was uncontroverted. Defendant, in support of its denial of liability, introduced evidence of the absence of temperature extremes on the date of the accident and called its plant manager and its driver, who described in detail its bottling and delivery operations, including the precautions taken to guard against the use of defective bottles. In addition, Dr. Oscar Fryer, a retired physics professor, who has done research and testing for the parent Coca-Cola company since 1939 and who has testified in numerous bottle-explosion cases, was called by defendant. He testified at length regarding the physicial properties of carbonated beverages, the effect of temperature and agitation upon the internal pressure of a bottle of carbonated beverage, and the results of breakage and internal-pressure tests conducted in defendant's plant with respect to seven 26-ounce Coca-Cola bottles picked at random from defendant's supply. He explained that three forces can cause a glass bottle to break, namely, thermo-shock, internal pressure, and external forces, and that if the bottle fragments are available, an expert in glass technology can determine what force or forces caused the bottle to fracture.
Because the fragments of the bottle in question were unavailable, and in view of plaintiffs' prima facie proof of liability under the doctrine of res ipsa loquitur, defendant sought by Dr. Fryer's opinion testimony in answer to a hypothetical question to support its claim that the injury-producing explosion was caused by external force due to plaintiff's mishandling. The question finally posed, after plaintiffs' repeated objections on the ground of materiality and insufficient factual foundation, was directed to elicit an opinion as to what would cause a hypothetical bottle in the hands of a hypothetical person to explode. The question was based upon hypothetical facts relating to defendant's bottling and delivery procedures as testified to by its manager and driver, the expert witness' own observations at defendant's plant and the results of his testing, and in part on the testimony of plaintiff describing the circumstances of the incident resulting in her injury. Responding to the hypothetical question, Dr. Fryer stated, 'It is my opinion that the bottle was struck a blow at the time that it failed.' Over plaintiffs' objection, this opinion was ruled admissible and provided the basis for the court's submission, also over plaintiffs' objection, of the issue of contributory negligence. The court also refused plaintiffs' request to instruct the jury that if the jury found that the bottle was defective, the rule of strict liability should be applied. 3
1. Our careful examination of the record compels us to conclude that the trial court committed reversible error in submitting the issue of contributory negligence to the jury.
Except for the opinion testimony of defendant's expert witness, the record is devoid of any evidence upon which a finding of contributory negligence could be sustained. Where, as here, the expert witness has no firsthand knowledge of the exploded bottle such as he could gain from examining its fragments, or of its age, appearance, condition, and the circumstances of its handling during the course of bottling and prior to delivery into the hands of the injured party, or of the injury-producing incident, the customary way of securing the benefit of the expert's scientific skill is to ask him to assume the truth of certain facts and then give his opinion based on such hypothesis. McCormick, Evidence, § 14, p. 30. However, the universal requirement for this type of hypothetical question is that the facts assumed must be supported by competent evidence in the case. Grapentin v. Harvey, 262 Minn. 222, 114 N.W.2d 578. 4 The record makes clear that defendant's expert witness by his own admission did not assume as facts that plaintiff did not strike, bump, or agitate the bottle. 5 These were the undisputed facts established by the unimpeached testimony of plaintiff, the sole witness to the accident. They could not be ignored as so inherently improbable as to be incapable of belief and were clearly required to be included in the hypothesis. On this record, no assumption could be made that plaintiff had intentionally or unwittingly or unknowingly struck the bottle against the cooler or otherwise subjected it to physical impact. Moreover, such an assumption as a basis for an opinion as to the cause of an explosion of a hypothetical bottle rather than the bottle which caused the injury introduces a collateral matter, clearly irrelevant, if not immaterial, to the factual dispute and, despite skillful cross-examination of the expert by counsel for plaintiffs, likely to create confusion and therefore prejudice to plaintiffs' claim of a...
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