Virgil v. \ KASH N'KARRY\" SERVICE CORP."

BLOOM, Judge. In this products liability case, the appellants, Irma Virgil and her husband, Donald Virgil, plaintiffs below, appeal from a judgment of the Circuit Court for Howard County, ²⁷ entered upon a directed verdict in favor of the defendantsappellees, “Kash N’ Karry” Service Corporation (Kash N’ Karry) and Aladdin Industries, Incorporated (Aladdin). The suit was for personal injuries sustained by Mrs. Virgil when a thermos bottle manufactured by Aladdin and sold by Kash N’ Karry imploded while Mrs. Virgil was pouring milk into it. The declaration asserted claims by Mrs. Virgil, alleging (count 1) various negligent acts and omissions including negligent failure to warn of the dangerous propensities of the product; (count 2) breach of express warranty; (counts 3 and 5) breach of implied warranty of merchantability; (counts 4 and 6) strict liability in tort.

A seventh count, incorporating the allegations of count 1, asserted a claim by Mr. and Mrs. Virgil, jointly, for loss of consortium as a result of the alleged negligence of the defendants. Mrs. Virgil testified that she purchased the pint-size thermos while shopping at Kash N’ Karry two or three months prior to the implosion; Every weekday morning she filled it with coffee and a little milk and took it to work, carrying it either by its handle or in a bag with her shoes. On Saturday mornings, she filled it with coffee and milk and carried it downstairs to the den, where she spent most of the day studying. Although the thermos bottle bore a label, “Easy To Keep Clean,” there were no instructions as to how to clean the thermos and no indication that any normal manner of cleaning it might damage it.

Mrs. Virgil described how she washed it, filling it at night with a mild solution of baking soda in warm water, then washing it the following morning with a bottle brush. She denied dropping the thermos or misusing, abusing or damaging it in any way. One morning, after pouring coffee into the thermos, she started to pour milk into it when it imploded, throwing hot coffee and glass into her face and injuring her eye. Appellants presented no expert testimony to give any scientific explanation for the implosion. ²⁸ At the' conclusion of the plaintiffs’ case, the trial judge granted the defendants’ motion for directed verdict as to all claims, holding that the Virgils had presented no evidence that the bottle was defective when purchased.

Appellants contend that the trial judge erred in directing the verdict because they had produced sufficient evidence to warrant submission of the case to the jury on the issue of negligence in failing to warn of inherent danger, on the issue of breach of implied warranty, and on the issue of strict liability. They also contend that the judge erred “in ruling as a matter of law that a period of three months from purchase to the accident increases the plaintiffs’ burden of proof.” There is no contention of error in the granting of the motion as to the claim for breach of express warranty. We find ourselves in agreement with appellants as to the claims for breach of implied warranty and strict liability (counts 3, 4, 5 and 6); we disagree with appellants as to the negligence claims (counts 1 and 7). It will not be necessary to address appellants’ final contention, but we will refer to it in our discussion of the other issues.

Motion for Directed Verdict At the time of the trial, Md.Rule 552 provided that in a jury trial any party might move, at the close of his opponent’s evidence or at the close of all evidence, for a directed verdict in his favor on any or all of the issues. 1 In ruling upon a defendant’s motion for directed verdict, the court was required to consider the evidence and all reasonable inferences deducible therefrom in the light most favorable to the plaintiffs. Campbell v. Patton, 227 Md. 125 , 175 A.2d 761 (1961). Only if the evidence and inferences deducible therefrom led to a conclusion upon which reason ²⁹ able minds could not differ would the issue be one of law for the court rather than one of fact for the jury. Schaeffer v. United Bank & Trust Co., 32 Md.App. 339 , 460 A.2d 461 (1976); Holloway v. Hauver, 22 Md.App. 303 , 322 A.2d 890 (1974).

If there was any competent evidence, however slight, supporting the plaintiff’s right to recover, the court was obliged to deny the motion and submit the case to the jury. Miller v. Michalek, 13 Md.App. 16 , 281 A.2d 117 (1971). Implied Warranty and Strict Liability To support their claim that appellees breached an implied warranty of merchantability, appellants had to establish that a warranty existed, that the warranty was breached, and that the breach was the proximate cause of the injury. Mattos, Inc. v. Hash, 279 Md. 371 , 368 A.2d 993 (1977); Sheeskin v. Giant Food, Inc., 20 Md.App. 611 , 318 A.2d 874 (1974).

If the seller of goods is a merchant with respect to goods of that kind, Md.Comm.Law Code Ann. § 2-314, a warranty of merchantability is implied in the contract of sale. To be merchantable, the goods must at least be fit for the ordinary purposes for which they are sold and conform to any promises or affirmations of fact made on the container or label. 2 ³⁰ Strict liability in tort, on the other hand, is described in the Restatement (Second) of Torts § 402 A, as follows: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. To recover on either theory — implied warranty or strict liability — the plaintiff in a products liability case must satisfy three basics from an evidentiary standpoint: (1) the existence of a defect, (2) the attribution of the defect to the seller, and (3) a causal relation between the defect and the injury.

Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976); Jensen v. American Motors Corp., 50 ³¹ Md.App. 226, 437 A.2d 242 (1981); see Digges, Product Liability in Maryland Revisited, 7 U.Balt.L.Rev. 1 (1977). We reject the appellees’ contention that it was necessary for the appellants to produce expert testimony to establish the existence of a defect. The general rule is well established that expert testimony is only required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman. Expert testimony is hardly necessary to establish that a thermos bottle that explodes or implodes when coffee and milk are poured into it is defective.

When a product fails to meet the reasonable expectations of the user, “the inference is that there was some sort of a defect, a precise definition of which is unnecessary.” Heaton v. Ford Motor Co., 248 Or. 467 , 435 P.2d 806 (1967). In granting appellees’ motion for directed verdict, the trial judge stated that he was “unable to discern that the thermos was not fit for the ordinary purposes for which it was intended ...,” citing Eaton Corp. v. Wright, 281 Md. 80 , 375 A.2d 1122 (1977) and Jensen v. American Motors Corp., supra. With regard to the claim based on strict liability, the trial judge found that the Virgils had failed to produce evidence that the thermos was defective