Warren v. Coca-Cola Bottling Co. of Chicago

• Decision Date: 19 February 1988
• Docket Number: No. 86,COCA-COLA,86
• Citation: 519 N.E.2d 1197,166 Ill.App.3d 566,117 Ill.Dec. 30
• Parties: , 117 Ill.Dec. 30, 87 A.L.R.4th 791, Prod.Liab.Rep. (CCH) P 11,764 Jean WARREN, Plaintiff-Appellant, v.BOTTLING COMPANY OF CHICAGO, a Delaware corporation, Coca-Cola Company, a Delaware corporation, and Litt's Cut Rate, Defendants-Appellees. 2276.
• Court: United States Appellate Court of Illinois

Page 1197

519 N.E.2d 1197

166 Ill.App.3d 566, 117 Ill.Dec. 30,

87 A.L.R.4th 791,

Prod.Liab.Rep. (CCH) P 11,764

Jean WARREN, Plaintiff-Appellant, v. COCA-COLA BOTTLING COMPANY OF CHICAGO, a Delaware corporation, Coca-Cola Company, a Delaware corporation, and Litt's Cut Rate Defendants-Appellees.

No. 86 2276.

Appellate Court of Illinois First District, Fifth Division.

Feb. 19, 1988.

[117 Ill.Dec. 32] [166 Ill.App.3d 568] Schmidt & O'Brien, Chicago (Philip J. Schmidt, of counsel), for Jean warren.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Thomas P. McGarry, Kathryn A. Spalding, of counsel), for Coca-Cola Bottling Co. of Chicago.

Daniel J. Pope, Michael T. Trucco, Timothy M. Kelly, Coffield Ungaretti Harris & Slavin, Chicago, for Coca-Cola Co.

Presiding Justice LORENZ delivered the opinion of the court:

Jean Warren (plaintiff) filed an action at law against defendants, Coca-Cola Bottling Company of Chicago (Bottling Company), the Coca-Cola Company (Coca-Cola) and Litt's Cut Rate, for injuries allegedly sustained from drinking a contaminated can of Coca-Cola. On July 10, 1986, the circuit court granted summary judgment (Ill.Rev.Stat.1985, ch. 110, par. 2-1005) in favor of defendants Bottling Company and Coca-Cola on their motions.

Plaintiff appeals that order based on a finding of the trial court pursuant to Illinois Supreme Court Rule 304(a). Ill.Rev.Stat.1985, ch. 110A, par. 304(a).

The following facts are pertinent to our disposition. On August 7, 1982, plaintiff became ill after drinking from a can of Coca-Cola purchased at Litt's Cut Rate, a drug store. On July 30, 1984, plaintiff filed a nine-count complaint against defendants, Coca-Cola, Bottling Company and Litt's Cut Rate, alleging that the can of Coca-Cola plaintiff consumed was contaminated with "a dangerous amount of streptococci fecalis." The complaint directed theories based in strict liability, negligence, and breach of implied warranties against each defendant. Defendants, Bottling Company and Coca-Cola, each filed answers denying the material allegations of the complaint.

Plaintiff was deposed on November 1, 1984, and established the following. Plaintiff, while with a friend, bought a single cold, flip top can of Coca-Cola, taken from a cooler, at Litt's Cut Rate during the afternoon of August 7, 1982. The top of the can was clean. Before plaintiff finished paying for the Coca-Cola she opened the can, noticed it had normal carbonation, and took a "big gulp." She immediately noticed that the Coca-Cola tasted bad. Plaintiff began to feel nauseated and sick to her stomach in less than five minutes after the first drink. She then left the store with her friend, taking the can of Coca-Cola with her. Plaintiff's friend drove plaintiff to Woodlawn Hospital. At the hospital's registration desk, plaintiff became increasingly ill and went to the bathroom where she began vomiting. Plaintiff was taken to the hospital's emergency room. Plaintiff told the doctors present that she became ill after drinking "some pop." Plaintiff was told that the cause of her illness "could be" from drinking the Coca-Cola.

Plaintiff was admitted to the hospital under the care of Dr. Nicholas Sanez. Dr. Sanez told plaintiff that her condition could have been caused by the Coca-Cola, but that an analysis of the can's contents could not be undertaken at the hospital. Throughout plaintiff's six-day hospital stay she suffered stomach cramps, diarrhea, and bouts of vomiting. The personnel at Woodlawn Hospital were never able to tell plaintiff what had caused her illness.

At all times during plaintiff's hospital stay, the can of Coca-Cola remained in plaintiff's mother's refrigerator. The top of the can was covered by tin foil, fastened with a rubber band. Plaintiff's mother had previously retrieved the can from plaintiff's friend's car on the evening that plaintiff was admitted to the hospital.

Following release from the hospital plaintiff took the can, by bus, to the Chicago Board of Health to be analyzed. The test results indicated the Coca-Cola contained 1,300 organisms of streptococci fecalis per gram. Plaintiff showed the results to Dr. Sanez, who told plaintiff that her illness "could have" been caused by the bacteria and that the bacteria's presence "wasn't normal." Plaintiff did not show the test results to any other doctor.

Natalie Humaniak, a bacteriologist with the Chicago Board of Health for 15 years, was deposed on March 26, 1985, and established the following. She performed a battery of routine tests on the contents of the can. The tests have two purposes: to indicate sanitary problems, and to identify specific pathogens; bacteria which cause food poisoning. Humaniak performed the following tests: a standard plate count test and a streptococci fecalis test for fecal contamination, which tests both indicate the sanitary condition of the sample but do not identify specific pathogens, and three other tests for pathogens: a salmonella test, a staphylococci test, and a bacillus cereus test. Humaniak noted that streptococci fecalis bacteria can also be pathogenic in very high numbers.

The salmonella, staphylococci, and bacillus cereus tests were all negative. The plate count test indicated that the Coca-Cola sample was insanitary, but not necessarily pathogenic. Normally, Humaniak noted, Coca-Cola would be "sterile" but she would expect that a can left open for six days would become insanitary. The test for streptococci fecalis indicated that the sample contained 1,300 organisms per gram of the bacteria. The number of organisms per gram is an estimation based on an actual count of streptococci fecalis organisms found in the test. The presence of 1,300 organisms per gram is not pathogenic, but indicates an insanitary condition of the sample. Humaniak could not be exact, but stated that, in her opinion, the amount of streptococci fecalis necessary to cause food poisoning in humans would have to be "in the hundreds of thousands or close to a million." Humaniak further stated that the streptococci fecalis test only indicates the presence of bacteria at the time the test is performed. The number of organisms could have been greater at some point prior to testing. The streptococci bacteria can only cause illness by releasing a toxin once ingested; the organisms do not multiply once inside the human body.

On December 12, 1985, defendant Bottling Company moved for summary judgment on the ground that no issue of material fact existed to show that plaintiff's condition was caused by "a dangerous amount of streptococci fecalis," as alleged in the complaint, or any other defect or unreasonably dangerous condition. In support of the motion, defendant attached relevant portions of the deposition testimony of both Humaniak and plaintiff. Defendant also attached an attending physician's report which recites, in legible portion, plaintiff's own description of the occurrence as "nausea and vomiting after drinking a can of Coca-Cola" and contains the "diagnosis" "acute gastritis." The report also contains a checkmark in the box denoted "yes" as to whether the patient's condition was solely a result of the "accident."

Plaintiff filed a response relying upon Humaniak's statements that the Coca-Cola was insanitary because of the presence of the estimated amount of streptococci fecalis and the causal connection of the contamination to plaintiff's illness, as established by the attending physician's report. Plaintiff also submitted the affidavit of a Dr. George Farah. The trial court, on defendant Bottling Company's motion, struck the affidavit. Plaintiff has not appealed that ruling.

On March 5, 1986, defendant Coca-Cola filed its motion for summary judgment on similar grounds advanced by defendant Bottling Company, and on the additional showing that the syrup manufactured by defendant Coca-Cola was not contaminated when it left the company's control. Defendant Coca-Cola attached two affidavits in support. The affidavit of Robert L. Callahan, a Vice President of Coca-Cola, established that the Coca-Cola Company owns the Coca-Cola trademark, and is responsible only for manufacturing and selling the syrup from which the beverage is ultimately produced and bottled by independent companies throughout the United States. The affidavit of L.G. Cunningham, Vice President of Quality Assurance for Coca-Cola USA, established that the syrup is manufactured in a completely closed system in which materials, received in sealed containers, are transferred directly to closed tanks where they are stored until transfer to a mixing vessel. The final form of the syrup is strained through a stainless steel mesh with openings of 0.004 of an inch. A laboratory analysis of the strained syrup is made, and the product is then packaged into thoroughly cleaned and inspected containers for shipment to bottlers.

Following a hearing on July 10, 1986, the trial court granted summary judgment in favor of defendants Coca-Cola and the Bottling Company. No judgment was rendered as to Litt's Cut Rate.

Plaintiff filed a timely notice of appeal.

The only issue presented for review is whether a genuine issue of fact exists to support plaintiff's allegations that her injury was caused by a "dangerous amount of streptococci fecalis" at the time the Coca-Cola was consumed.

OPINION

Upon review of the trial court's decision granting summary judgment, our only function is to determine, after considering all grounds urged and facts revealed below, whether a genuine issue of material fact remained to be determined by a jury, and whether movants were entitled to summary judgment as a matter of law. (United Security Insurance Co. v. Mason (1978), 59 Ill.App.3d 982, 17 Ill.Dec. 507, 376 N.E.2d 653.) The order of the court below will not be disturbed if the pleadings, depositions, and affidavits on file reveal that no such factual issue exists. Fishel v. Givens (1977), 47 Ill.App.3d...