Vamos v. Coca-Cola Bottling Co. of New York, Inc.

• Citation: 627 N.Y.S.2d 265,165 Misc.2d 388
• Decision Date: 12 April 1995
• Docket Number: COCA-COLA
• Parties: Peter VAMOS, Plaintiff, v. TheBOTTLING COMPANY OF NEW YORK, INC., Defendant.
• Court: New York City Court

Page 265

627 N.Y.S.2d 265

165 Misc.2d 388

Peter VAMOS, Plaintiff, v. The COCA-COLA BOTTLING COMPANY OF NEW YORK, INC., Defendant.

Civil Court of the City of New York New York County, Trial Part 11.

April 12, 1995.

Glenn H. Shore, and Jay H. Tanenbaum, New York City, for plaintiff.

John M. Guglielmo, New York City (Robert R. Groezinger, of counsel), for defendant.

LOUISE GRUNER GANS, Judge.

At the conclusion of the trial of this action for damages for personal injuries based on breach of implied warranty of merchantability and negligence, the jury returned a verdict in favor of plaintiff Vamos and against defendant Coca-Cola Bottling Company of New York, Inc. on each claim. These claims arose when plaintiff drank Diet Coke from a bottle containing two AA batteries. The jury awarded plaintiff $204,000 for past pain and suffering, and $350,000 for future pain and suffering.

Pursuant to CPLR 4404(a), defendant moved to set aside the jury verdict on liability as not supported by sufficient evidence, and as against the weight of the credible evidence. To determine that a jury verdict is not supported by sufficient evidence as a matter of law, there must be no valid line of reasoning and permissible inferences which could lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 (1978); Nicastro v. Park, 113 A.D.2d 129, 132, 495 N.Y.S.2d 184 (2d Dep't 1985). A jury verdict is against the weight of the evidence if the jury could not have reached the verdict on any fair interpretation of the evidence. Id. at 134, 495 N.Y.S.2d 184; Yalkut v. City of New York, 162 A.D.2d 185, 188, 557 N.Y.S.2d 3 (1st Dep't 1990).

Defendant essentially argues that there was no evidentiary basis for holding it responsible for the presence of the two AA batteries in the bottle of Diet Coke from which plaintiff drank, and that in the absence of a chemical analysis of the soda remaining in the bottle, no causal relationship could be established between plaintiff's ingestion of the soda and any injuries he suffered.

Where an item of food or drink intended for human consumption is sold, an implied warranty is imposed on the manufacturer that the item is fit for human consumption and free from any harmful or unwholesome substances, when it leaves the manufacturer's control. UCC 2-314; Hohn v. South Shore Services, Inc., 141 A.D.2d 504, 529 N.Y.S.2d 129 (2d Dep't 1988); 86 NYJur2d Products Liability § 129 at 517; 90 ALR4th 12 Foreign Substance in Beverage § 2[a] at 22; see also England v. Sanford, 167 A.D.2d 147, 561 N.Y.S.2d 228 (1st Dep't 1990), aff'd 78 N.Y.2d 928, 573 N.Y.S.2d 639, 578 N.E.2d 437 (1991). In order to recover, however, the injured consumer must prove that the product was actually defective or unwholesome, and that the defect or unwholesome condition existed at the time the product left the possession or control of the manufacturer. Tardella v. RJR Nabisco, Inc., 178 A.D.2d 737, 576 N.Y.S.2d 965 (3rd Dep't 1991); Kotiadis v. Gristede Bros., Inc., 20 A.D.2d 689, 690, 246 N.Y.S.2d 662 (1st Dep't 1964). In the case of food or drink sold in a sealed container, this burden may be satisfied by proof that there was no opportunity for tampering with the sealed container, or by proof that there was no such tampering in the given case. See id.

Liability may also be established against a manufacturer of a food product on the basis of negligence, and negligence may be shown by direct as well as circumstantial evidence, including by application of the doctrine of res ipsa loquitur. See, e.g. Mitchell v. Coca-Cola Bottling Co., 11 A.D.2d 579, 200 N.Y.S.2d 478 (3rd Dep't 1960); Miller v. National Bread Co., 247 A.D. 88, 286 N.Y.S. 908 (4th Dep't 1936); Polvere v. Chunky Chocolate Corp., 140 N.Y.S.2d 322 (App.Term, 1st Dep't 1955); see also 86 NYJur2d Products Liability, Food & Beverages §§ 127-135 at 514-525; 2C Warren's Negligence, Foreign Substances in Foods & Beverages § 88.02[1][C], at 506-510.

A manufacturer is under a duty adequately to prepare, inspect and package its food product, and failure to take these precautions constitutes or may constitute negligence. Bissonette v. National Biscuit Co., 100 F.2d 1003, 1004 (2d Cir.1939). However, as in the case of breach of implied warranty, an injured consumer seeking redress upon a theory of negligence must show that the failure in the preparation, inspection or packaging of the food product occurred before the product left the possession or control of the manufacturer, Polvere v. Chunky Chocolate Corp., supra; Halem v. Wagner Baking Corp., 16 Misc.2d 840, 184 N.Y.S.2d 54 (City Ct., Kings Co.1959), and that consumption of the product was a proximate cause of the injury for which recovery is sought, Ober v. Associated Coca-Cola Bottling Co., Inc., 118 A.D.2d 1016, 500 N.Y.S.2d 389 (3rd Dep't 1986); Pompilio v. McGeory, 283 A.D. 826, 129 N.Y.S.2d 13 (2d Dep't 1954); Miller v. National Bread Co., supra at 89, 286 N.Y.S. 908.

Plaintiff's evidence was sufficient to support the jury's verdict as to liability based on breach of the implied warranty of merchantability that the Diet Coke that plaintiff Peter Vamos drank was not fit for human consumption as bottled and sealed by defendant Coca-Cola Bottling Company of New York, Inc.

There was sufficient evidence from which the jury could find that plaintiff did find two AA batteries at the bottom of the bottle of Diet Coke from which he drank on September 26, 1989. Not only did plaintiff testify to this fact, but so did an eyewitness, Mr. Schlesinger, who was with plaintiff when he opened the bottle, drank from it and discovered the batteries. Plaintiff preserved and placed in evidence the Diet Coke bottle with the batteries inside. The jury's acceptance of this evidence was entirely a matter of credibility since defendant offered no evidence to contradict it.

On the question whether the bottle of Diet Coke containing two AA batteries was unfit for human consumption, plaintiff relied on the inherently noxious nature of the batteries. The jury was instructed that it was required to find that the soda containing the batteries was unfit for human consumption as a predicate for its breach of warranty determination, and it was not irrational for the jury to make such a finding.

Although the evolution of the law of implied breach of warranty has been slow and torturous, in those cases where the foreign substance found in food or drink is obviously revolting or noxious, the prevailing view has been that independent proof of its unfitness for human consumption is not required. Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105 (1931) (pin in bread); Barrington v. Hotel Astor, 184 A.D. 317, 171 N.Y.S. 840 (1st Dep't 1918) (mouse in meat); Stark v. Chock Full O'Nuts, 77 Misc.2d 553, 356 N.Y.S.2d 403 (App.Term, 1st Dep't 1974) (walnut shell in cheese) ¹; Gay v. A & P Food Stores, 39 Misc.2d 360, 240 N.Y.S.2d 809 (Civ.Ct., Bronx Co.1963) (worm in corn); Trembley v. Coca-Cola Bottling Co., Inc., 285 A.D. 539, 138 N.Y.S.2d 332 (3rd Dep't 1955) (mouse in Coke); Mitchell v. Coca-Cola Bottling Co., supra (insect in Coke); Perez v. Glens Falls Coca-Cola Bottling Co., Inc., 30 A.D.2d 755, 291 N.Y.S.2d 198 (3rd Dep't 1968) (thread-like leafy substance in Coke); Lore v. De Simone Bros., 12 Misc.2d 174, 172 N.Y.S.2d 829 (Sup.Ct., Richmond Co.1958) (bone in salami); see also Chysky v. Drake Brothers Co., 235 N.Y. 468, 472, 139 N.E. 576 (1923) (nail in cake).

The law has recognized that the concept of unfit food or drink encompasses not only products that are physically unsafe, but also products that are subject to social and psychological taboos. In Barrington v. Hotel Astor, supra, the court held that the presence of a mouse in a kidney saute rendered the food unfit for human consumption, even though from a medical point of view the flesh of the mouse was not dangerous to health when eaten. The court recognized that the social prejudice against mice as a form of food was sufficient to explain the violent physical reaction of a person finding a cooked mouse on his plate. In Gay v. A & P Food Stores, supra, the court noted that the presence of certain substances in food, such as worms, evoked fright and psychic trauma, even if the worms were not actually consumed. Thus, a chemical analysis, while certainly preferable and probative, is not indispensable to establishing that food or drink containing a foreign substance is unfit for human consumption. ²

On the question whether the batteries were in the bottle of Diet Coke before it left defendant's bottling plant, or were placed there subsequently, plaintiff and his witness, Mr. Schlesinger, both testified that plaintiff purchased the bottle of Diet Coke at a grocery store, that the bottle was sealed when it was purchased, that they both saw and heard plaintiff break the seal while opening the bottle, and heard the fizz of the escaping carbonation as the seal was broken and the cap unscrewed. The jury could reasonably infer from this testimony, including the description of the fizzing sound when plaintiff broke the seal and opened the bottle, that the bottle had not been tampered with since the time it was carbonated and sealed in defendant's plant. See Haynes v. Coca Cola Bottling Co. of Chicago, 39 Ill.App.3d 39, 44, 350 N.E.2d 20, 25 (1976).

Contrary to defendant's contention, the testimony of defendant's quality assurance manager, Thomas Smith, did not require the rejection of this inference. In describing defendant's manufacturing and bottling process, Mr. Smith testified that if the batteries were in an empty bottle when the bottle was delivered to the plant, it was possible for them to physically remain in the bottle even if the bottle were inverted and washed during the bottling process. Thereafter, Mr. Smith's testimony was subject to the...