Shuput v. Heublein Inc.

• Decision Date: 06 March 1975
• Docket Number: No. 74--1207,C--195--73,74--1207
• Citation: 511 F.2d 1104
• Parties: George SHUPUT, Plaintiff-Appellant, v. HEUBLEIN INC., a Connecticut Corporation, Defendant-Appellee. ().
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1104

511 F.2d 1104

George SHUPUT, Plaintiff-Appellant, v. HEUBLEIN INC., a Connecticut Corporation, Defendant-Appellee.

No. 74--1207 (C--195--73).

United States Court of Appeals Tenth Circuit.

Submitted Nov. 15, 1974.

Decided March 6, 1975.

Allan L. Larson, of Worsley, Snow & Christensen, Salt Lake City, Utah, for plaintiff-appellant.

Ramon M. Child of Ray, Quinney & Nebeker, Salt Lake City, Utah, for defendant-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and McWILLIAMS, Circuit Judges.

LEWIS, Chief Judge.

George Shuput, the plaintiff below, appeals from a judgment of the United States District Court for the District of Utah entered upon a ruling of the trial court granting the motion of the defendant, Heublein Inc., for a directed verdict. The plaintiff had sought damages for injuries he received when a polyethylene stopper ejected from a champagne bottle, manufactured and distributed by Heublein, and struck him in the eye. He advanced the following theories in support of his claim: (1) negligence of the defendant in designing, manufacturing, and distributing a champagne bottle which would spontaneously and unexpectedly eject its stopper and the stopper's restraining wire, and in failing to warn thereof; (2) breach by the defendant of the warranties of merchantability and of the fitness of its product for its intended use; (3) breach by the defendant of its duty in strict liability. In directing its verdict at the close of the plaintiff's evidence, the trial court made clear, as the basis for its ruling, that Heublein owed plaintiff no duty to protect against the risk of the stopper's being ejected and causing injuries to the plaintiff and that the defendant's product was not unreasonably dangerous. Thus, the trial court stated that '(t)here isn't any undisclosed hazard . . . in this case.'

Plaintiff now contends that his evidence was sufficient, under any one of his theories, to require the submission of his case to the jury. The question on appeal is, therefore, whether that evidence was such that reasonable persons could have reached but one conclusion as to the verdict--namely, that defendant should prevail. Brady v. Southern R.R., 320 U.S. 476, 479--80, 64 S.Ct. 232, 88 L.Ed. 239; Wright v. Marzo, 10 Cir., 427 F.2d 907, 909; Swearngin v. Sears Roebuck & Co., 10 Cir., 376 F.2d 637, 639. Mindful of our own admonition, that directed verdicts should be granted sparingly in consideration of the seventh amendment, Swearngin v. Sears Roebuck & Co., supra, we have neither weighed the credibility of the witnesses nor otherwise considered the weight of the evidence in our review of the record. Rather, we have viewed the evidence in the light most favorable to the plaintiff. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777; Peter Kiewit Sons Co. v. Clayton, 10 Cir., 366 F.2d 551, 554. So viewed, the following facts appear.

During the afternoon of December 31, 1970, plaintiff attended a party given by his employer. Several bottles of defendant's champagne had been purchased and chilled. They had not been shaken or abused. Some of the bottles were opened, in each instance by pushing or in some way forcing the cork after the removal of the restraining wire. The host Mr. Ed. Mawod began to open a bottle, first removing the foil wrapping on the bottle's top and then attempting to remove the restraining wire. He quickly became impatient with the wire and asked the plaintiff for assistance. The plaintiff said 'you turn that' and reached to twist the wire himself. Mr. Mawod continued to hold the bottle but looked away from the plaintiff. He then heard a pop and saw the plaintiff on the floor. The polyethylene stopper had ejected from the bottle and, together with the loosened restraining wire, had struck plaintiff in the right eye. Only about fifteen seconds had elapsed since Mawod first picked up the bottle. The plaintiff later permanently lost all of the central vision in his right eye.

Plaintiff presented no evidence that the product was negligently designed in general nor that the subject bottle was separately defective in any way. As a consequence we agree, on this record, that plaintiff failed to make a case based on traditional negligence or specific warranty as it pertains to the particular bottle involved. We are left, then, to a consideration of whether plain...