Sheeskin v. Giant Food, Inc.

Davidson, J., delivered the opinion of the Court. Every Friday for over two years Nathan Seigel, age 73, shopped with his wife at a Giant Food Store. This complex products liability case is before us because on one of these Fridays, 23 October 1970, Mr. Seigel was carrying a six-pack carton of Coca Cola from a display bin at the Giant to a shopping cart when one or more of the bottles exploded. Mr. Seigel lost his footing, fell to the floor and was injured.

In the Circuit Court for Montgomery County, Mr. Seigel sued both the Giant Food, Inc., and the Washington Coca Cola Bottling Company, Inc., for damages resulting from their alleged negligence and breach of an implied warranty. At the conclusion of the trial Judge Walter H. Moorman directed a verdict in favor of each defendant. Mr. Seigel appealed to the Court of Appeals. On 11 October 1972 that Court remanded the case for further proceedings without affirmance or reversal.

In a per curiam opinion the Court said: “At. the conclusion of all the evidence, the lower court, with considerable reluctance, granted Giant’s and Coca Cola’s motions for directed verdicts in their favor, on the theory that Uniform Commercial Code (UCC) § 2-314, Maryland Code (1957,1964 Repl. Vol.) Art. 95B, § 2-314 postulated a breach of implied warranty only upon a completed sale to Seigel and that res ipsa loquitur was inapplicable. Unfortunately, the attention of the court seems not to have been invited by the plaintiff either to UCC § 2-318, Code Art. 95B, § 2-318, as amended by Ch. 249 of the Laws of 1969, which now provides that under certain circumstances a warranty may be ⁶¹⁴ implied in the absence of privity of contract or to Leikach v. Royal Crown, 261 Md. 541 , 276 A. 2d 81 (1971), in which this Court recognized for the first time that there may be factual situations involving exploding bottles where res ipsa loquitur may be invoked. It may well be that additional testimony will be required to determine whether there was or was not a sale by Coca Cola to Giant and to ascertain whether there is evidence that the three criteria necessary for reliance on res ipsa loquitur, Leikach, supra, at 547 are present.

Accordingly, we shall remand the case to the trial court without affirmance or reversal for further proceedings.” Further proceedings were had before Judge David L. Cahoon who permitted appellant to reopen his case. Mr. Seigel produced additional evidence in the form of a stipulation that prior to Mr. Seigel’s injury the Washington Coca Cola Bottling Company, Inc., sold to the Giant Food, Inc., the bottles of Coca Cola which Mr. Seigel ultimately selected. No additional testimony was adduced on the issue of the applicability of res ipsa loquitur under the standards set forth in Leikach . The defendants renewed their motions for directed verdicts.

After review and consideration of the memoranda and oral arguments of the parties, Judge Cahoon granted the motions. His order was filed on 16 July 1973. Mr. Seigel appealed to this Court. I Applicability of Res Ipsa Loquitur Appellant contends that the doctrine of res ipsa loquitur is applicable.

He maintains that since the evidence shows that the possibility of damage to the bottles by a customer at the Giant is remote, his injury must have been caused either by the negligence of the bottler, Washington Coca Cola Bottling Co., Inc. or by the negligence of the retailer, Giant Food, Inc. He concludes that res ipsa loquitur applies and that he is entitled to have the jury pass on his claim. In Joffre v. Canada Dry, Inc., 222 Md. 1, 8-9 , 158 A. 2d 631 , ⁶¹⁵ 635 (1960), the Court of Appeals specifically rejected the view that evidence of the explosion of a bottle of carbonated beverage in a store, without more, requires both the bottler and the retailer to go forward and produce evidence exonerating themselves from responsibility. The Court said: “The Maryland rule is that if plaintiff offers evidence which raises two or more inferences of the cause of the harm (or negligence), for only one of which the defendant is responsible, no cause of action is made out. The test is applicable in situations in which res ipsa loquitur may be applicable.

In such instances the plaintiff must show that the thing that caused the injury was in the exclusive control of the defendant. . . . “The cases from other jurisdictions which have permitted the inference of negligence of the bottler from the exploding of a bottle most often have been those where the probability of an intervening cause of the breaking has been excluded by the testimony for the plaintiff.” (Citations omitted.) Thus the Court established that in order to invoke the doctrine of res ipsa loquitur the plaintiff must produce evidence sufficient to show that his injury was probably caused by conditions within the exclusive control of a given defendant. Under Joffre , exclusive control in a given defendant could be shown only by evidence which excluded all possibilities as to the probable cause of plaintiff’s harm other than those in the control of the particular defendant. In Leikach v. Royal Crown, 261 Md. 541, 547-48 , 276 A. 2d 81, 84 (1971), the Court of Appeals reiterated the three criteria enunciated in Munzert v. American Stores, 232 Md. 97, 104 , 192 A. 2d 59, 63 (1963), for successful reliance on the doctrine of res ipsa loquitur: “1. A casualty of a sort which usually does not occur in the absence of negligence. “2.

Caused by an instrumentality within the defendant’s exclusive control. ⁶¹⁶ “3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.” In explicating the meaning of the term “exclusive control” the Court said: “[T]he criterion of ‘exclusive control’ in the area of exploding soda bottles is not applied literally for, if it were, there could hardly, if ever, be a recovery. As 2 Harper and James, The Law of Torts put it in § 19.7, pp. 1086-1087: ‘The requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably “such that the defendant would be responsible for any negligence [such as, in the present case, (1) defects in the bottle, (2) defects caused by improper handling of the bottle, or (3) excessive carbonation] connected with it.” That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant’s door.’ ” 261 Md. at 548 , 276 A. 2d at 84-85 . The Court then specifically held: “[T]he burden of a plaintiff who relies on res ipsa loquitur in an exploding bottle case does not include the exclusion of every possible cause of injury other than that of the bottler’s negligence, but does include the proving that there is a greater likelihood that injury was caused by the defendant’s negligence than by some other cause . . . .” (Emphasis added.) 261 Md. at 550 , 276 A. 2d at 86 .

Thus the Court retreated from the stringent standard earlier enunciated in Joffre concerning the applicability of res ipsa loquitur. ⁶¹⁷ In applying the principles of Leikach to the instant case we must consider the claimant’s evidence and all inferences that permissibly can be drawn from that evidence in the light most favorable to the claimant. Leikach, supra, 261 Md. at 545 , 276 A. 2d at 83 ; Short v. Wells, 249 Md. 491, 495 , 240 A. 2d 224, 227 (1968); Beach v. Woodward & Lothrop, Inc., 18 Md. App. 645, 649 , 308 A. 2d 439, 441 (1973); Buchanan v. Galliher and Harless, 11 Md. App. 83, 87-88 , 272 A. 2d 814, 816-17 (1971). At the trial Mr. Seigel testified that he intended to buy a six-pack carton of Coca Cola containing 16-ounce returnable bottles. He stated that the cartons from which he selected his six-pack were stacked in the display bin in the usual fashion: four cartons deep and five or six cartons high with sheets of self-retracting plastic forming shelves to separate the cartons vertically.

The cardboard carton of the six-pack he selected was not defective in any way. There was no liquid around him or the bottles as he reached to remove the six-pack. There were no other people nearby. He did not have to reach very high to place four fingers of his right hand through both handles of a six-pack located near the top of the stack.

As he lifted the carton and took it out of the bin it neither touched nor was touched by anything other than his hand. No other bottles of soft drinks fell. When he had taken three or four steps toward his shopping cart “there was an explosion, a loud explosion and it knocked the carton out of my hand completely, there was such force to it. I tried to move and the Coca Cola was all over the floor and I couldn’t get any traction with my feet because it was slippery.

As I tried to go forward I couldn’t, and I fell.” The manager of the Giant testified that three or four bottles were broken; that no effort was made to-examine any of them; and that the broken glass was swept up by his employees and not retained. It is apparent from the record before us that the first test for the successful application of res ipsa loquitur is satisfied. Moreover, Mr. Seigel’s testimony as to the circumstances surrounding his removal of the carton of Coca Cola from the shelf satisfies the third test. As in Leikach , the question with which we are here confronted is the “exclusive control” exercised by each defendant.

Under the standard established ⁶¹⁸ in Leikach we must determine whether there was sufficient evidence to show a greater likelihood that injury was caused by the negligence of the bottler rather than the retailer, or vice versa, and by one of these two rather than by some other cause. Here there was uncontradicted evidence to show that there are three primary causes for a Coca Cola bottle to explode: a manufacturing defect, a thermal shock or an impact break resulting from mishandling. With respect to the likelihood that Mr. Seigel’s injury was caused by the negligence of the bottler, there was evidence to show that Washington Coca Cola Bottling Company, Inc., buys bottles from several different manufacturers. All of the bottles purchased are manufactured in accordance with standards set by the National Soft Drink Association.

All of the bottles are visually and electronically inspected in order to detect defects and defective bottles which escape detection would, in any event, break when subjected to pressurization. Between 1967 and 1970 the bottler produced a total of 288,000,000 bottles and received only eleven complaints concerning bottles which exploded. In the absence of any affirmative showing of the existence of a manufacturing defect in the bottles which exploded in Mr. Seigel’s hand, this evidence supports an inference that it was highly unlikely that a manufacturing defect caused the bottles here involved to explode. There was evidence to show that once filled the bottles were stored by the bottler in a ventilated but non-refrigerated area and were delivered in non-refrigerated trucks.

There was also evidence that the filled bottles were stored by the bottler for a maximum period of two weeks prior to their delivery and that the bottles here involved were delivered on either 19 or 21 October 1970. The evidence that storage and delivery of the bottles occurred in and was confined to the month of October 1970, in the absence of any evidence as to unusually high temperatures during that month, negates the possibility that thermal shock during the period of time in which the bottler controlled the bottles caused the explosion which resulted in injury to Mr. Seigel and supports an inference to ⁶¹⁹ the contrary. Finally, there was evidence to show that the bottles are moved by machine throughout the entire bottling process, from the unloading of the bottles when delivered by the manufacturer to the bottling company, through the washing, sterilization, inspection, pressurization, filling, capping and ultimate packaging in cardboard cartons, each containing six bottles of Coca Cola, and then in wooden cases, each containing four six-packs. The bottles are delivered in trucks especially designed to avoid the possibility of impact damage during transit.

The only time the Cokes are handled non-mechanically is when the bottler’s employee removes the wooden cases from the bottler’s truck, stacks them four or five high on a hand truck, carries them from the rear of the retailer’s store to the aisle in which they are to be displayed, and stamps the price upon the cardboard cartons, not the bottles. All of this evidence supports an inference that the possibility of impact damage resulting from mishandling by the bottler is essentially limited to the period of time within which the bottles are carried from the truck to the aisle of the retailer’s store. With respect to the retailer, the evidence shows that the bottles delivered to him during October 1970 were stored for a maximum of five days in an area kept at a constant temperature of 72°. This evidence totally eliminates the possibility that the explosion was caused by thermal shock during the period of time in which the bottles were controlled by the retailer.

There was further evidence to show that once delivered to the appropriate aisle at the retailer’s, the cartons of Coca Cola were removed from their wooden cases and stacked on the shelves by the retailer’s employees; that during the two to five days in which they remained on the shelf they might have been periodically rearranged and restacked by the retailer’s employees; and that cartons which might have been abandoned by customers at various locations throughout the store would have been returned to the shelves by the retailer’s employees. This evidence not only supports the inference that there was a substantial likelihood of impact damage resulting ⁶²⁰ from mishandling by the retailer’s employees during the period within which the bottles were in the retailer’s control, but also the further inference that because the opportunities for mishandling by the retailer were considerably more extensive than those of the bottler, there was a greater likelihood that Mr. Seigel’s injuries were caused by the negligence of the retailer than by any cause within the control of the bottler. Finally, there was evidence to show that the Giant is a self-service store in which the only way a customer can buy anything is to select it himself. There are occasions when a customer may select an item in the store, then change his mind and put the item back.

Customers generally do not change their minds about purchasing Coca Cola after they have removed a carton from the shelf, but when such a change of mind does occur, the customers “never” or “hardly ever” replace the carton on the shelf from which it was removed. The cartons abandoned by customers will be found in various places around the store, such as on the freezers, the floor or other counters. This evidence reduces the likelihood that impact damage occurred to the particular bottles selected by Mr. Seigel as a result of mishandling by customers, and supports an inference that as between the customer and the retailer the greater probability of negligence lies with the retailer. On the basis of the record before us we are convinced that the evidence was sufficient to show a greater likelihood that Mr. Seigel’s injury was caused by the retailer’s negligence rather than by some other cause.

Having met his burden of proof, appellant was entitled to have res ipsa loquitur applied and to have the jury pass on the question of Giant’s negligence. Accordingly, we will reverse the judgment in favor of the retailer, Giant Food, Inc., as to negligence, and affirm the judgment in favor of the bottler, The Washington Coca Cola Bottling Company, Inc., as to negligence. II Breach of Warranty In an action based on breach of warranty it is necessary ⁶²¹ for the plaintiff to show the existence of the warranty, the fact that the warranty was broken and that the breach of warranty was the proximate cause of the loss sustained. Code (1957), Art. 95B, § 2-314, Official Comment 13; 1 see Erdman v. Johnson Brothers, 260 Md. 190, 195 , 271 A. 2d 744, 746 (1970); cf. Twombley v. Fuller Brush Co., 221 Md. 476, 491 , 158 A. 2d 110, 118 (1960).

Appellant contends that the evidence was sufficient to establish each of these three elements with respect to both the retailer and the bottler. The retailer contends that appellant failed to show the existence of a warranty from Giant Food, Inc., to appellant while the bottler contends that appellant failed to show that its warranty was breached. A. The Retailer The retailer, Giant Food, Inc., contends that appellant failed to prove that an implied warranty existed between himself and the retailer because he failed to prove that there was a sale by the retailer to him or a contract of sale between the two. The retailer maintains that there was no sale or contract of sale because at the time the bottles exploded Mr. Seigel had not yet paid for them.

We do not agree. Code (1957), Art. 95B, § 2-314 (1) states in pertinent part: “Unless excluded or modified (§ 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” (Emphasis added.) Thus, in order for the implied warranties of § 2-314 to be applicable there must be a “contract for sale.” In Maryland it has been recognized that neither a completed “sale” nor a fully executed contract for sale is required. It is enough that there be in existence an executory contract for sale. See Fred ⁶²² J. Miller, Inc. v. Raymond Co., 265 Md. 523, 527-28 , 290 A. 2d 527, 529-30 (1972).

In Buffalo Steel Co. v. Kirwan, 138 Md. 60, 64 , 113 A. 628, 630 (1921), the Court of Appeals defined the term “contract” as follows: “A contract has been defined as an ‘agreement which creates an obligation.’ 13 C. J. 237, and such an agreement may be defined as the concurrence of two or more persons in a common intent to affect their legal relations, and for the purposes of this case these definitions may be taken as sufficiently accurate. The agreement referred to must rest finally upon an offer made by one party and the acceptance thereof by the other party to that contract. Brantly, Contracts, par. 7. An ‘offer is a proposal to enter into a contract’ (13 C. J. 266, also Bouvier), and an acceptance is the assent of the party to whom the offer is addressed to its terms.

The offer must be certain and definite and the acceptance must ‘in every respect meet and correspond with the offer.’ 13 C. J. 278; Brantly, Contracts, par. 9. That is to say both parties to the contract ‘must actually give their assent to that proposal and acceptance, be it what it may, w’hich de facto arise out of the terms of their communications.’ 1 Elliott, Contracts, par. 26.” Code (1957), Art. 95B, § 2-106(1) provides in pertinent part: “In this subtitle .... ‘Contract for sale’ includes both a present sale of goods and a contract to sell goods at a future time. A ‘sale’ consists in the passing of title from the seller to the buyer for a price (§ 2-401). A ‘present sale’ means a sale which is accomplished by the making of the contract.” The terms of the statute are clear and unambiguous and are its best expositor.

Shay v. Joseph, 219 Md. 273, 275 , 149 A. 2d 3, 4 (1959). These provisions establish that: ⁶²³ 1. There are three essential elements which characterize a transaction as a “sale”: a. Title must pass from one party to another; b. the subject of the transaction must be “goods,” that is, “all things . . . which are movable at the time of identification to the contract . . . .”; 2 and c. a price must be paid. 3 2.

A contract for the sale of goods is an agreement between the parties that one will transfer title to the goods to the other for a price. 3. A contract for the sale of goods can involve either an agreement to transfer title to goods for a price at the time the agreement is made or an agreement to transfer the title to the goods for a price at a time subsequent to that at w'hich the agreement is made. 4 Here, the plaintiff has the burden of showing the existence of the warranty by establishing that at the time the bottles exploded there was a contract for their sale existing between himself and the Giant. Twombley v. Fuller Brush Co., supra; Shay v. Joseph, supra. Mr. Titus, the manager of the Giant, testified that the retailer is a “self-service” store in which “the only way a customer can buy anything is to select it ⁶²⁴ himself and take it to the checkout counter.” He stated that there are occasions when a customer may select an item in the store and then change his mind and put the item back.

There was no evidence to show that the retailer ever refused to sell an item to a customer once it had been selected by him or that the retailer did not consider himself bound to sell an item to the customer after the item had been selected. Finally, Mr. Titus