Thomas v. Amway Corp.

• Decision Date: 28 February 1985
• Docket Number: No. 82-240-A,82-240-A
• Citation: 488 A.2d 716
• Parties: , 40 UCC Rep.Serv. 836 Elizabeth THOMAS v. AMWAY CORPORATION. ppeal.
• Court: Rhode Island Supreme Court

Page 716

488 A.2d 716

54 A.L.R.4th 561, 40 UCC Rep.Serv. 836

Elizabeth THOMAS v. AMWAY CORPORATION.

No. 82-240-Appeal.

Supreme Court of Rhode Island.

Feb. 28, 1985.

Hugh L. Moore, Jr., Kevin M. Cain, Providence, for plaintiff.

Paul Martellino, Newport, Samuel S. Concemi, Lawrence, Mass., for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the plaintiff, Elizabeth Thomas, from a judgment against her on an action in negligence, strict liability, and breach of both express and implied warranties of merchantability against the defendant, Amway Corporation. The case was tried before a justice of the Superior Court and a jury. At the close of the plaintiff's case, the defendant moved for a directed verdict, which was granted by the trial justice on all counts, and the plaintiff now appeals this decision. The facts of this case are as follows.

In September of 1976, plaintiff purchased from defendant a bottle of liquid soap commercially identified as Nature Shower. Shortly after showering and using the soap, plaintiff's skin became irritated and inflamed and red blotches developed over a large portion of her body. The red blotches would often bleed, causing plaintiff's clothes and bed sheets to stick to her body.

The plaintiff informed defendant by telephone on October 30, 1976, and again on November 15, 1976, that upon using the soap, she had suffered a severe skin rash and had experienced severe itching and discomfort. The defendant responded by letter on November 12, 1976, in which communication defendant indicated that it had received complaints from several buyers of an occasional, unusual, or unexpected reaction to the soap. The defendant also requested that plaintiff complete some forms and send a sample of the soap that plaintiff had purchased. The plaintiff complied with both requests. The trial justice refused to admit this letter into evidence.

The plaintiff's skin remained inflamed for over a year, during which time she was treated by three different doctors. The itching was usually so intense that plaintiff would often be forced to leave work early. When the red blotches finally did clear up in August of 1978, they left marks all over her body. The plaintiff died on May 28, 1980, from other causes. ¹

The plaintiff's daughter, Linda Greene, testified that neither her mother nor her sister, who also suffered a rash after using the soap, had had a skin condition prior to September 1976. Testimony was also given by John Hopf, a commercial photographer who took several photographs of the plaintiff in November 1976 and who testified to the circumstances surrounding the taking of the photographs and identified the same. The trial justice refused, however, to admit into evidence defendant's answers to plaintiff's interrogatories numbered 40, 41, and 44, which listed the names of individuals who had filed complaints with defendant after they had sustained injuries as a result of using the soap.

On an appeal from the trial justice's decision on a motion for a directed verdict, we must look at the evidence, as does the trial justice, in the light most favorable to the adverse party. We are obliged to give such party the benefit of all legitimate inferences that may be properly drawn therefrom without sifting or weighing evidence or exercising independent judgment concerning the credibility of the witnesses. If issues upon which reasonable persons might draw conflicting conclusions exist, we must overturn the trial justice's decision. Gormley v. Vartian, 121 R.I. 770, 780, 403 A.2d 256, 261 (1979); Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 294-95, 373 A.2d 492, 495-96 (1977). Keeping this standard in mind, we shall address the issues in the case at bar.

I Breach of Implied Warranty of Merchantability

The plaintiff's allegation of a breach of implied warranty is premised on G.L 1956 (1969 Reenactment) § 6A-2-314, ² which discusses the merchantability of goods. A review of the evidence fails to demonstrate any negation of the requirements of merchantability by defendant, Amway. This implied warranty is breached when a product of fair average quality does not pass in the trade and is unfit for the ordinary purpose for which it is used, which in this case was the cleansing of the body. Handrigan v. Apex Warwick, Inc., 108 R.I. 319, 322-23, 275 A.2d 262, 264-65 (1971); Bosway Tube & Steel Corp. v. McKay Machine Co., 65 Mich.App. 426, 431, 237 N.W.2d 488, 490 (1975); § 6A-2-314.

The plaintiff did not present any evidence from which a jury reasonably could have inferred that Nature Shower was a liquid soap that would not pass without objection in the trade. Nor did plaintiff offer proof to show that Nature Shower was not of fair average quality or fit for the ordinary purpose of cleaning. The plaintiff has merely proven the happening of an occurrence; she demonstrates that she developed a skin condition following the use of Nature Shower in September 1976 but has not proved the causal nexus between the happening of the occurrence and the alleged breach of the implied warranty of merchantability. The plaintiff is not bound to exclude every other possible cause of her condition but she is required to show that the probable cause was the soap. Benavides v. Stop & Shop, Inc., 346 Mass. 154, 156-58, 190 N.E.2d 894, 896-97 (1963); see also San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. 700, 709-10, 248 A.2d 778, 783 (1968). Because we find that the evidence does not establish beyond conjecture that the soap was deleterious and that the ailment of which plaintiff complains was due to the soap rather than to many other factors that could have caused the rash, we affirm the directed verdict in regard to the implied warranty count.

II Breach of an Express Warranty

General Laws 1956 (1969 Reenactment) § 6A-2-313 sets forth the necessary requisites of proof in order to prevail on a claim for a breach of an express warranty by affirmation or promise. ³ The plaintiff contends that the label on Nature Shower expressly warranted that its use "leaves skin feeling silky clean * * * Gentle for all uses" and that "everyone in the family will enjoy the convenience of this versatile body cleanser for bathing, showering and handwashing." The plaintiff asserts that this express warranty was breached because she suffered a rash after using this product.

Although the trial justice's assertion that "it [Nature Shower] can be gentle but result in a rash" is inherently contradictory, especially when read in conjunction with the "for all uses" language, ⁴ he was correct in directing a verdict on defendant's behalf with respect to this issue. The plaintiff who claims breach of express warranty has the burden of proving that the statements or representations made by the seller induced her to purchase that product and that she relied upon such statements or representations. Rogers v. Zielinski, 99 R.I. 599, 603-04, 209 A.2d 706, 708 (1965) (this case was decided under § 6-3-12, which was recodified in 1969 as § 6A-2-313); Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc., 39 Ill.App.3d 48, 53-55, 349 N.E.2d 627, 632-33 (1976). In the case at bar, defendant had not printed on the bottle that the product would not produce a rash, thus plaintiff had no representation to rely upon. As the trial justice properly noted, "[t]here is no evidence in this case that Mrs. Thomas made her bargain on anything contained on the container." Without this evidence, we affirm the trial justice's decision that plaintiff cannot recover for breach of express warranty.

III Interrogatories

Before considering plaintiff's counts for negligence and strict liability in tort, we must determine whether or not the trial justice erred in not allowing into evidence defendant's answers to plaintiff's interrogatories numbered 40, 41, and 44, which listed the names of persons who had filed complaints with defendant, either by letter or by telephone, after they had sustained injuries as a result of having used the soap. We must also determine whether the trial justice should have admitted a letter that defendant wrote to plaintiff on November 12, 1976, concerning plaintiff's unfavorable reaction to the product. The trial justice found that both the letter and the interrogatories were immaterial and irrelevant to any issue before the court.

Rule 33(b) of the Superior Court Rules of Civil Procedure provides that answers to interrogatories may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. A necessary prerequisite of Rule 26(d)(2) is that the deposition or interrogatory be admissible under the rules of evidence. We have consistently held that the admission of evidence objected to as being irrelevant or immaterial is within the sound discretion of the trial justice. Kelaghan v. Roberts, R.I., 433 A.2d 226, 231-32 (1981). In the absence of abuse of discretion, such evidentiary rulings will not constitute a basis for reversal. Flanzbaum v. Senco Products, Inc., R.I., 460 A.2d 15, 17 (1983); Aiello Construction, Inc. v. Nationwide Tractor Trailor Training and Placement Corp., 122 R.I. 861, 867-68, 413 A.2d 85, 89 (1980). In the case at bar, we find that the trial justice did abuse his discretion in finding that defendant's letter and the answers to plaintiff's interrogatories were not material or relevant to any issue.

Many courts find that the existence of complaints is proper for pretrial discovery and relevant to the issue of whether the defendant had notice of the dangerous propensities of the product. Wright v. Carter Products Inc., 244 F.2d 53, 59 (2nd Cir.1957); Cohen v. Proctor & Gamble Distributing Co., 18 F.R.D. 301, 302 (D.C.Del.1955); Warn Industries v. Geist, 343 So.2d 44, 46 (Fla.App.1977). In Wright, which involved an action for injuries from use of a deoderant manufactured by the defendant, the court found that evidence of 373 complaints in the four years from 1948 ...