Pemberton v. American Distilled Spirits Co.

• Decision Date: 13 February 1984
• Citation: 664 S.W.2d 690,42 A.L.R.4th 245
• Parties: Charles Edward PEMBERTON, Jr., Administrator of the Estate of Charles Edward Pemberton, III and Charles Edward Pemberton, Jr., Appellees, v. AMERICAN DISTILLED SPIRITS COMPANY, D & V Distributing Company, and Warehouse Liquors, Inc., Appellants. 664 S.W.2d 690, 42 A.L.R.4th 245
• Court: Tennessee Supreme Court

Page 690

664 S.W.2d 690

Charles Edward PEMBERTON, Jr., Administrator of the Estate of Charles Edward Pemberton, III and Charles Edward Pemberton, Jr., Appellees, v. AMERICAN DISTILLED SPIRITS COMPANY, D & V Distributing Company, and Warehouse Liquors, Inc., Appellants.

664 S.W.2d 690, 42 A.L.R.4th 245

Supreme Court of Tennessee at Knoxville.

Feb. 13, 1984.

Thomas S. Scott, Jr., Dan D. Rhea, Arnett, Draper & Hagood, Knoxville, for appellants.

Lockridge & Becker, P.C., James A. McIntosh, Knoxville, for appellees.

OPINION

COOPER, Justice.

Charles Edward Pemberton, Jr., individually and as administrator of the estate of his minor son, Charles Edward Pemberton, III, filed an action against the retailer, the wholesaler, and the manufacturer of Everclear Grain Alcohol, seeking damages for the death of his son from the ingestion of the alcohol. The defendants filed motions to dismiss testing the sufficiency of the complaint, which were sustained by the trial court. A divided Court of Appeals reversed the trial court, holding (1) that the charges against the manufacturer were sufficient to support a cause of action on strict liability, negligence, and warranty and (2) that the complaint against the retailer and wholesaler was sufficient on the breach of warranty charge. The court affirmed the dismissal of the strict liability and negligence charges insofar as they related to the retailer and wholesaler. We granted the application for permission to appeal filed by the defendants to determine whether the complaint states a claim under the Tennessee Products Liability Act, T.C.A. Sec. 29-28-101 et seq., upon which relief can be granted. See T.R.C.P. 12.02(6).

In considering a Rule 12.02(6) motion to dismiss, we are required to take the allegations of the complaint as true, and to construe the allegations liberally in favor of the plaintiff. Holloway v. Putnam County, 534 S.W.2d 292 (Tenn.1976); Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). And, as pointed out in Fuerst v. Methodist Hospital South, 566 S.W.2d 847 (Tenn.1978),

"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 [101-102], 2 L.Ed.2d 80 (1957).

Bearing these basic rules in mind, the pertinent provisions of the complaint filed in this cause are:

That on or about February 21, 1981, the decedent purchased a bottle of Everclear Grain Alcohol, manufactured by the defendant American Distilled Spirits Company. Approximately one-half of the alcohol contained in the 25.4 ounce bottle of Everclear Grain Alcohol was consumed by the decedent on February 21, 1981. The alcohol was purchased from the defendant, Warehouse Liquors, Inc., for the decedent by persons unknown to the plaintiff. Warehouse Liquors, Inc., purchased the said Grain Alcohol from the defendant, American Distilled Spirits Company.

* * * At all times mentioned herein, the defendants, and each of them, were engaged in the business of selling alcoholic beverage products for human consumption. The decedent purchased the said Everclear Grain Alcohol for the purpose of consuming it.

On February 21, 1981, the decedent opened the said bottle and consumed a quantity of the beverage and, as a proximate result thereof, became violently and severely ill, and died on February 22, 1981, as a result of alcohol overdose. The said beverage was unwholesome, poisonous, and unfit for human consumption in that it contained a content of pure grain alcohol far in excess of that which can be safely consumed by a human being.

Plaintiff alleges that the Everclear Grain Alcohol consumed by the decedent presented an unreasonable risk of harm to the decedent, and that the defendants, and each of them, knew or should have known that consumption of Everclear Grain Alcohol can and does cause blood alcohol levels greater than .35 percent to occur, and that it can be lethal in itself.

Plaintiff alleges that the defendants, and each of them, failed to properly warn the decedent of the risk of harm which could occur from consuming the said Everclear Grain Alcohol.

On the allegations, the action is governed by the Tennessee Products Liability Act, T.C.A. Sec. 29-28-101, et seq. The Act states in section 105 that:

(a) A manufacturer or seller of a product shall not be liable for any injury to person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.

"Defective condition" is defined in T.C.A. Sec. 29-28-102(2) as "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption." For a product to be "unreasonably dangerous" it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition." T.C.A. Sec. 29-28-102(8). The Products Liability Act expressly provides that "[a] product is not unreasonably dangerous because of failure to adequately warn of a danger or hazard that is apparent to the ordinary user." T.C.A. Sec. 29-28-105(d).

The plaintiff makes no claim that the grain alcohol was improperly manufactured, or that it contained dangerous impurities, or that any of the defendants violated any statutes regulating the manufacture or sale of alcoholic beverages, but proceeds on the theory that the grain alcohol was in a "defective condition" and was "unreasonably dangerous" because of its high alcoholic content, and because of the failure of the defendants to warn consumers of dangers inherent in its consumption.

As pointed out by Judge Franks in his dissenting opinion in the Court of Appeals, "[a]lthough deceased was a minor, whether the product was defective or unreasonably dangerous within the meaning of the Act is determinable from the standards established in the Act, i.e., the knowledge of the ordinary consumers of the product. The comments to Sec. 402(a) of Restatement (Second) of Torts support this interpretation of 'unreasonably dangerous.'...