Parrillo v. Giroux Co., Inc., 78-410-A

• Decision Date: 11 March 1981
• Docket Number: No. 78-410-A,78-410-A
• Citation: 426 A.2d 1313
• Parties: 31 UCC Rep.Serv. 108 Richard PARRILLO v. GIROUX COMPANY, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1313

426 A.2d 1313

31 UCC Rep.Serv. 108

Richard PARRILLO v. GIROUX COMPANY, INC., et al.

No. 78-410-Appeal.

Supreme Court of Rhode Island.

March 11, 1981.

Louis Baruch Rubinstein, Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Howard I. Lipsey, Providence, for plaintiff.

Rice, Dolan, Kiernan & Kershaw, Leonard A. Kiernan, Jr., Providence, for defendants.

OPINION

KELLEHER, Justice.

This is a Superior Court civil action in which the plaintiff, Richard Parrillo (Parrillo), seeks to recover damages for injuries alleged to have occurred when a bottle of grenadine he was opening exploded. The defendants are Giroux Company, Inc. (Giroux), the manufacturer of the syrup, A-W Brands, Inc. (A-W Brands), the parent company of Giroux, and Giroux's local distributor, Providence Beverage Company (Providence Beverage). The trial justice dismissed the four-count complaint (negligence, strict liability, res ipsa loquitur, and breach of implied warranty) in regard to A-W Brands and directed a verdict in favor of Giroux and Providence Beverage on all the other counts except the claim for strict liability. The jury then returned a verdict for Giroux and Providence Beverage. Parrillo's appeal is presented against a simple but interesting factual background.

The incident precipitating this litigation occurred on February 9, 1973. At that time, Parrillo was working as a bartender in Warwick, Rhode Island, at the Barnsider Restaurant. He arrived at work at 9:30 a. m. in order to prepare the bar for an 11:30 a. m. opening. Parrillo testified that his activities during this two-hour period included stocking the bar with liquor and fruit. Supplies for the area were stored in a caged-off area in the kitchen. At approximately 4:30 p. m., a waitress came to the service area of the bar and ordered a variety of drinks, including a Singapore Sling. One of the ingredients of a Singapore Sling is grenadine. ¹

Parrillo testified that there was insufficient grenadine in the open bottle to make the drink. This deficiency caused him to take from a cabinet behind the bar another bottle of Giroux grenadine. According to Parrillo, he "took the bottle out with my right hand, set it on the bar, took the seal off the top. There's a little seal around the top. As soon as I started to open, taking the cap off it's a screw cap it just exploded." Parrillo saw blood flowing from his finger and put a towel around it. He was unable to stem the flow of blood and was driven to the Kent County Hospital by another employee. ²

Louis Perlman (Perlman), vice president of sales for A-W Brands, explained that Giroux manufactured only the syrup; the bottles were purchased from another company. Perlman then went on to describe the bottling process, which included a visual inspection before the bottles were placed in a carton for shipment to the distributor. Of the 4,800 to 5,600 bottles of grenadine which were packaged each day, Perlman estimated that approximately twelve were discarded because of defects. Some of the bottles were not sealed properly, and others were rejected because they did not contain the proper amount of syrup. He added that he had never heard of a bottle of Giroux grenadine exploding. ³

Medical testimony presented at trial indicated that Parrillo was hospitalized twice. The first occasion was for the treatment of a laceration of the right index finger and minor surgery in which the flexor tendons and the digital ulnar nerve were joined and sutured. Later, the numbness in the palm side of the index finger caused Parrillo to seek the assistance of a plastic surgeon. The plastic surgeon concluded that Parrillo had suffered a permanent 12 percent loss of use of the injured digit.

Giroux presented an expert witness, Frank Dolyak, a professor of biology at Rhode Island College and a specialist in immunology. He testified that, based upon his experience, it would have been impossible for the syrup contained in the bottle to cause the explosion. He based his conclusion primarily on the fact that the syrup has a very high acidity level, making it virtually impossible for any type of bacteria to survive. On cross-examination Professor Dolyak conceded that he did not perform any tests on the bottles used by Giroux to package the syrup.

The issues raised by Parrillo relate to the trial justice's charge on Parrillo's strict-liability claim and the direction of verdicts on his res ipsa loquitur and breach-of-warranty claims as well as the directed verdict in regard to all claims against A-W Brands. The directed verdicts were entered after Parrillo had concluded his presentation of evidence.

Strict Liability

Prior to the development of the so-called strict-products-liability doctrine, the principal avenues by which an individual could seek damages for injury caused by a defective product were actions grounded in negligence law, most frequently under the doctrine of res ipsa loquitur, or by way of a suit alleging a breach of implied warranty. However, those roads to recovery were by no means stretches of open highway. There existed numerous obstacles that frequently precluded recovery. For example, in a negligence action, it might well be impossible for a plaintiff to demonstrate that a particular defendant was responsible for the injury or that proper inspection would have revealed the defect. Similarly, in a breach-of-warranty situation, recovery might be prevented by lack of "privity" between the manufacturer and the plaintiff or lack of proof of reliance upon the warranty by the plaintiff.

It was in response to these obstacles that the doctrine of strict liability in tort for defective products has been developed. This court examined the issue of strict products liability in Ritter v. Narragansett Electric Co., 109 R.I. 176, 283 A.2d 255 (1971). In Ritter, we formally adopted the doctrine was explicated in Restatement (Second) Torts § 402A at 347-48 (1965) ⁴ and we suggested that the doctrine

"contemplates first, that there must be a defect in the design or manufacture which makes the product unsafe for its intended use, and second, that liability does not attach unless the plaintiff was using the product in a way which it was intended to be used when he was injured by it. Under the doctrine of strict liability in tort for defective design, it is immaterial whether the manufacturer was negligent in creating the design or exercised all reasonable care in the creation of the design. If a defect appears in the product in spite of all reasonable care exercised by the manufacturer, he is liable just the same." Ritter v. Narragansett Electric Co., 109 R.I. at 190, 283 A.2d at 262.

In his charge to the jury, the trial justice, after relating instances of what he described as "automatic liability," observed that the strict-products-liability doctrine relied upon by Parrillo might properly be referred to as "liability for defective products." He then went on to explain the doctrine and told the jury:

"If a manufacturer or supplier or seller of a product puts that product on the market and there is a defect in that product which makes the product unreasonably dangerous, when that product is being used in a normal manner and that defective product causes injury to someone, then the manufacturer or supplier or seller is called upon to respond in damages."

On two subsequent occasions within the charge, the trial justice embellished these remarks as he discussed with the jury such issues as the burden of proof and the necessity of proximate cause. At the conclusion of the charge, Parrillo's counsel objected to what he described as an omission of one element of the doctrine. He described the omission as the trial justice's failure to tell the jury that the doctrine was applicable even though Giroux or Providence Beverage might have demonstrated that they had used all reasonable care in the preparation and distribution of the bottled grenadine. The trial justice explained the omission by informing counsel that the so-called omitted element plays no part in an action based upon the strict-liability doctrine. We see no reason to fault the trial justice.

Ritter makes it patently clear that the exercise of all reasonable care in the creation and distribution of a product is completely irrelevant. Strict liability in tort arises because of a defect in the product rather than on the basis of negligent management. The doctrine is applicable even though all possible care was exercised in the preparation of the product. Teagle v. Fisher & Porter Co., 89 Wash.2d 149, 570 P.2d 438 (1977). When the charge is read in its entirety, it is clear that the jury well understood what were the relevant issues to be resolved as it considered the strict-liability count.

Implied Warranty

Parrillo contends that the trial justice erred when he dismissed the implied-warranty count of the complaint ⁵ for Parrillo's failure to comply with the notice provisions of G.L.1956 (1969 Reenactment) § 6A-2-607. ⁶ The trial justice ruled that Parrillo had not, as a matter of law, notified defendants of the breach within a reasonable period of time. In dismissing the implied-warranty count, the trial justice stated:

"a fair reading of (G.L.1956 (1969 Reenactment) § 6A-2-607) would lead one to conclude that it is a condition precedent to maintaining an action for breach of warranty that the plaintiff prove that the reasonable notice was given. In this case there has been no such proof. The only evidence in this case is that some form of notice was given to the defendants. The defendants acknowledged that, but there is absolutely no evidence as to when that notice was given and what that notice contained * * *."

The question of what constitutes a reasonable time in which to give notice of breach is ordinarily a question of fact; when the facts are undisputed and only one inference can be drawn from those facts, the question becomes one for the courts. San Antonio v. Warwick Club...