Dechello v. Johnson Enterprises

WILNER, Judge. Appellant was injured when a plastic stopper allegedly flew off a bottle of Asti Spumante sparkling wine and hit her in the eye. In the Circuit Court for Prince George’s County, she sued the retailer who sold her husband (then her fiance) the bottle of wine and the importer who purchased the bottle from the manufacturer and sold it to the retailer. She did not sue the manufacturer/bottler of the wine.

According to appellant, when her fiance brought the bottle home, she removed it from the bag, briefly examined it, and placed it on the kitchen counter. While it was on the counter, she removed the foil and the wire basket from the top of the bottle. She then turned to throw the foil and wire into the wastebasket. As she turned back and reached for the bottle, the stopper spontaneously ejected and struck her in the eye.

Appellant’s amended complaint contained three counts. The gravamen of Count I, captioned “Strict Liability—Failure to Warn,” was, indeed, the failure to warn of a dangerous condition. She alleged that the bottle was “in a defective condition unreasonably dangerous to the plaintiff in that it failed to contain any warning of the latent risks inherent in such product and the use thereof,” that “[t]he defendants knew or should have known of the latent risks and dangers associated with carbonated wines, of which ²³¹ plaintiff was unaware, but failed to provide any warning whatsoever of such risks and dangers, despite minimal cost to do so,” and that “[a]s a direct and proximate result of defendants’ failure to warn of the defective and unreasonably dangerous condition of the bottle and its contents, plaintiff sustained severe and permanent injury to her eye.” Nothing was said in Count I about either a design or manufacturing defect. Count II, captioned “Negligence,” was voluntarily dismissed by appellant at the beginning of trial and is therefore not directly relevant to this appeal.

We observe, however, that it too was based essentially on the failure to warn. Appellant averred that the defendants knew or should have known that the bottle was unreasonably dangerous for the use for which it was supplied and that consumers would not realize its dangerous condition, that the defendants had a duty “to warn of the dangers inherent in sparkling carbonated wine” and that they breached that duty by “failing to exercise reasonable care to inform plaintiff of the dangerous condition____” Count III was based on breach of implied warranty of merchantability under Md.Code Ann.Comm.Law art., § 2-314. Appellant incorporated by reference all previous allegations in the amended complaint and further averred that the defendants were merchants or sellers for purposes of § 2-314, that they warranted that the bottle was fit for ordinary purposes and was adequately contained, packaged, and labeled, and that that warranty was breached because the bottle was “in a defective condition unreasonably dangerous to the plaintiff.” In support of her case, appellant called two experts— James Green, an engineer, and Robert Cunitz, a psychologist. Mr. Green said that he conducted experiments on nine bottles of Asti Spumante wine—four from one “lot,” five from another.

He chilled the bottles to 48° F, removed the foil and the wire baskets, set the bottles on a level device outside his home, brought them up to 68° F (ambient room ²³² temperature) and observed what happened. In the first lot of four bottles, each stopper ejected spontaneously; the stoppers in the second lot did not eject “without me forcing them out at room temperature.” Upon ejection, the stoppers flew straight up and hit the eave of Mr. Green’s roof, which, using a surveyor’s tape, he calculated was “approximately 20 feet in height.” By timing the flight of the stoppers, Green determined the velocity of the stopper in flight to be “approximately 34 miles per hour at the end of the 20 feet.” Five of the nine stoppers (three from the first lot of four bottles and two from the second lot of five bottles) were lost in the woods behind Green’s house. After sending a report of his observations to appellant’s counsel, Green decided to measure the rings on the four remaining stoppers. He discovered that the one stopper he still had from the lot of four bottles—the one that spontaneously ejected —was smaller than the average of the three stoppers he had remaining from'' the lot of five bottles that did not spontaneously eject. 1 Four of the five rings on the stopper that struck appellant were smaller than the corresponding rings on the four stoppers he had left from his experiment.

Finally, Mr. Green determined that there was a variance in the size of the corresponding rings from one stopper to another of between 0.001 and 0.055 inches. He concluded that there should not be a variance of more than 0.001 inches, and from that opined that (1) there was poor quality control during the manufacturing process and (2) the capping on the bottle that struck appellant was defective. On cross-examination, Mr. Green conceded that he was unaware of any official or industry-wide standards regarding allowable variations in the stoppers, that he was not an ²³³ expert in plastics, and that he did not know why a manufacturer would want to use a plastic stopper. 2 Dr. Cunitz, testifying as a “human factors psychologist,” opined that a bottle of Asti Spumante wine is defective unless it contains a warning and that it was economically feasible to put a warning label on the bottle. Though deprecating the evidence produced by appellant and disputing the conclusions sought to be drawn from it, defendants produced little evidence of their own. 3 They simply argued that the accident could not have happened as appellant alleged, suggesting to the jury that appellant must have been trying to open the bottle, or at least have had it pointing toward her head, when the stopper ejected.

That argument was apparently persuasive, as the jury returned a defendants’ verdict. Aggrieved by the judgment entered on that verdict, appellant has brought this appeal, complaining that: “1. The court should [have] enter[ed] judgment in favor of the appellant notwithstanding the verdict of the jury and order[ed] a partial new trial on damages because the appellant conclusively established that she was injured by a defective and unreasonably dangerous product and the appellees did not introduce any evidence at the trial to refute appellant’s evidence.” ²³⁴ and “2. The judgment of the Circuit Court should be reversed and a new trial granted to the appellant because the trial court erroneously instructed the jury regarding the law of strict liability and warranty of merchantability.” This case was not well tried; indeed, it was substantially misdirected.

Appellant sought to prove facts and theories that she never pled and offered suspect and uncompelling evidence to support her new theories. The court allowed her to do that and then compounded the problem by giving instructions to the jury that were hopelessly confusing. On this record, we find no merit whatever in appellant’s first complaint, but, because the jury instructions were so jumbled and confusing, we shall remand the case for a new trial. We do this with some reluctance because a good bit of the confusion was engendered by the presentation of appellant’s case, but the result is required nonetheless.

(1) Liability As A Matter Of Law Appellant’s first argument goes too far; she says, in effect, that, on the evidence before the court, she was entitled to judgment as a matter of law. We do not agree. Unfortunately in this case, as in a number of product liability cases, the theories of liability asserted by the plaintiff in her pleadings became a bit muddled as the trial proceeded. As a preliminary matter, then, it is necessary to disentangle them and restate the bases on which the plaintiff sought to recover.

Count I, as we observed, claimed no more than a failure to warn; the “defective condition” complained of was the failure “to contain any warning of the latent risks inherent in [the] product and the use thereof.” The strict liability action was not based on any alleged defect in either design or manufacture. Count III, based on breach of implied warranty under Comm.Law art., § 2-314, raised in a general way the issue of the condition of the bottle and its stopper. The implied warranty of merchantability includes ²³⁵ a warranty that the goods “[a]re fit for the ordinary purposes for which the goods are used” and that they are “adequately contained, packaged, and labeled as the agreement may require.” § 2-314(2)(c) and (e). Liability under § 2-314 has been found where the user is injured by defects in the packaging as opposed to defects in the contents on the theory that, if the container is defective and causes injury, the product is not adequately packaged and is not fit for its ordinary use.

See Giant Food, Inc. v. Wash. Coca-Cola, 273 Md. 592 , 332 A.2d 1 (1975); 3 R. Anderson, Uniform Commercial Code § 2-314:35; Prosser and Keaton, The Law of Torts, 5th ed., § 99, p. 694. In showing a breach of implied warranty, the plaintiff does not have to establish that the defect is particularly one of design or manufacture; as with strict liability, culpability can arise from a failure to warn. As pointed out in Hayes v. Ariens Co., 391 Mass. 407 , 462 N.E.2d 273, 277 (1984), “Even if a product is properly designed, it is unreasonably dangerous and, therefore, it is not fit for the purposes for which such goods are used, if foreseeable users are not adequately warned of dangers associated with its use----” (Citation omitted.) See also Reid v. Eckerds Drugs, Inc., 40 N.C.App. 476 , 253 S.E.2d 344, 349 (1979); Wolfe v. Ford Motor Co., 6 Mass.App. 346 , 376 N.E.2d 143 (1978); 3 R. Anderson, Uniform Commercial Code, § 2-314:75. 4 The averment in Count III as to dangerousness was a general one; there was no specific statement of how the ²³⁶ bottle was dangerous, what its particular defect was.

By incorporating the allegations of Counts I and II, however, appellant seemingly regarded the defective condition as arising solely from the lack of a proper warning. Maryland has long recognized a duty on the part of sellers to warn of latent dangers attendant upon a proper use of the products they sell, where injury is foreseeable. The standard applied in that regard, under all three theories of negligence, breach of implied warranty, and strict liability, has been that stated in Restatement (Second) of Torts § 388. See Katz v. Arundel, Etc.

Corp., 220 Md. 200, 203 , 151 A.2d 731 (1959); Twombley v. Fuller Brush Co., 221 Md. 476, 492 , 158 A.2d 110 (1960); Moran v. Faberge, 273 Md. 538, 544 , 332 A.2d 11 (1975). Section 388 states: “Chattel Known to be Dangerous for Intended Use One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” That stoppers can spontaneously eject from bottles of sparkling wine at great velocity has been fairly well documented and indeed is virtually acknowledged in this case. Mr. Green found that the stoppers from the bottles he tested ejected at a speed of 34 miles per hour and could strike an object 20 feet away with 12 pounds of force. In ²³⁷ another case, evidence showed that cold champagne may eject a stopper with a momentum of 63% of that of a .22 caliber pistol firing a short cartridge.

See Shuput v. Heublein, Inc., 511 F.2d 1104 , 1106 n. 1 (10th Cir.1975). See also 3B Products Liability, supra, n. 1, § 48.19[12][b][ii], reciting experiments showing velocities of up to 40 miles per hour for stoppers ejecting from champagne bottles stored at 32° F, and Eolkin and Tan Reports noted in n. 2, ante. A number of courts have concluded that that propensity can suffice, at least for purposes of strict liability under Restatement (Second) of Torts, § 402A, to make the bottle unreasonably dangerous, and that a failure to give adequate warning of the danger can create liability. See Gasque v. Heublein, Inc., supra, 281 S.C. 278 , 315 S.E.2d 556 ; Shuput v. Heublein, Inc., supra, 511 F.2d 1104 ; and cf. Murray v. Almaden Vineyards, Inc., 429 So.2d 24 (Fla.App.1983), and Burke v. Almaden Vineyards, Inc., 86 Cal.App.3d 768 , 150 Cal.Rptr. 419 (1978); compare Cosgrove v. Estate of Delves, 35 A.D.2d 730 , 315 N.Y.S.2d 369 (1970).

The cases finding that prospect of liability each turned on their respective facts, however, the appellate court concluding no more than that, on the facts before it, a jury question was presented as to the dangerousness of the product, the duty to warn, the adequacy of a warning given, or whether the plaintiff acted reasonably under the circumstances. See, for example, the discussion in Shuput, supra, 511 F.2d at 1106 : “We consider that