Tenney v. Seven-Up Co., SEVEN-UP
Decision Date | 05 September 1978 |
Docket Number | No. 3313,SEVEN-UP,3313 |
Citation | 92 N.M. 158,1978 NMCA 90,584 P.2d 205 |
Parties | David S. TENNEY, Debra L. Tenney and David Lane Tenney, a minor, by his next friend, David S. Tenney, Plaintiffs-Appellees, v. TheCOMPANY, and Seven-Up Bottling Company, Defendants-Appellants. |
Court | Court of Appeals of New Mexico |
Plaintiffs' complaint pled alternatively strict products liability and negligence. However, at trial plaintiffs abandoned the theory of negligence and stipulated that the only theory under which they were proceeding was strict products liability. Plaintiffs prevailed and the defendants appeal alleging two points of error; the first of "which is dispositive of this appeal . . . neither the court's findings of fact nor the evidence adduced at trial supports the judgment entered herein on the theory of strict products liability."
The plaintiff, Debra Tenney, purchased 7-Up from the defendant, Piggly-Wiggly. She took them home and placed them in the refrigerator. Two days later she removed a bottle, opened it, poured a portion for herself and gave her 4 or 5 month old son a portion in his bottle. While feeding her baby, she noticed what appeared to be worms in the bottom of the bottle. She called the 7-Up bottler who sent a representative over. He took a sample of the substance for analysis. Mrs. Tenney retained a sample to have her own analysis done.
The 7-Up representative returned sometime later and informed Mrs. Tenney it was not worms in the bottle and that the substance was not harmful. Sometime later the Environmental Health Department of the City of Albuquerque advised her that the substance she had asked to be analyzed was "blood vessels of unknown origin."
The doctrine of strict products liability in tort became the law of New Mexico in the case of Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972) when the Supreme Court adopted the Restatement of Torts, 2nd § 402A.
" § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
The elements which a plaintiff has the burden of proving under this doctrine are: (1) the product was defective; (2) the product was defective when it left the hands of the defendant and was substantially unchanged when it reached the user or consumer; (3) that because of the defect the product was unreasonably dangerous to the user or consumer; (4) the consumer was injured or was damaged; (5) the defective condition of the product was the proximate cause of the injury or damage. Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182 (1965); Swain v. Boeing Airplane Co., 337 F.2d 940 (2nd Cir. 1964).
Comments g, h, and i to Section 402A, supra, recite in part as follows:
As our Supreme Court pointed out in Stang, prior to the doctrine of strict product liability, a buyer of a defective and dangerous product had two possible theories of recovery against the manufacturer, negligence or breach of warranty. However, because of "shortcomings" in each of these theories, centering on matters of proof, the doctrine of strict liability evolved. The rationale being that the loss suffered by the injured party should be placed on the manufacturer, regardless of negligence or bad faith, to be included as a cost of the product. See, Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967). Notwithstanding, the doctrine does not make the manufacturer an absolute insurer. The strict liability is imposed...
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