Green v. Safeway Stores, Inc. , 1975 Okla. LEXIS 384 ( 1975 )

IRWIN, Justice:

Elizabeth Green (Appellee) instituted an action against Safeway Stores, Inc. (Appellant), to recover damages for injuries she sustained when a soft drink she had purchased at appellant’s store exploded. Appellee’s action was based on theories of negligence, of breach of implied warranty, and of strict liability in tort. The jury returned a verdict for appellee and judgment was rendered thereon. Appellant appealed.

On assignment to the Court of Appeals, the judgment was affirmed. Appellant seeks certiorari.

Appellee purchased a six-bottle carton of 12-ounce soft drinks at appellant’s store. She left the store carrying the carton by its handle, crossed the street, and was waiting for a traffic signal when the accident allegedly occurred.

Appellee alleged that the six-bottle carton collapsed, due to its defective, worn and substandard condition, causing one of the bottles therein to fall to the pavement and explode resulting in her serious and permanent injuries.

Appellee testified that, “I heard this crash or whatever you want to call it and I felt a sting, and I felt my foot and shoe get wet and I looked down and I was cut and there was a piece of glass laying on the ground and I hollered * * *.”

The evidence reveals that four or five of the six bottles remained in the carton after the one bottle fell out. No evidence was presented to sustain a finding that the bottle exploded prior to the time it fell on the pavement and appellee did not so allege. Therefore, if any defective product was the proximate cause of appellee’s injury, it was the carton in which the bottles were carried and not the bottle that fell from the carton or the contents thereof.

Appellee testified that she had no indication or prior warning that anything was going to happen; that she did not misuse the carton, swing the carton, or do anything that would cause the bottle to fall. Appellee presented nothing further concerning the incident. The carton itself was not introduced and the record is barren of any evidence that the carton collapsed, was worn or of substandard material, or that the bottle fell out of the carton because of any defective condition.

Trial was had prior to the promulgation of Kirkland v. General Motors Corp. (1974), Okl., 521 P.2d 1353. Although the decision in Kirkland was prospective, we said it may “likewise be applied by the appellate courts in cases which have been tried and are for decision on appeal where it would not prejudice the rights of the litigants.”

Appellee states in her brief that in view of the pleadings and evidence the rules set forth in Kirkland are applicable in the case at bar. We find no reason why Kirkland should not be dispositive of this appeal.

Appellant contends the trial court erred in overruling its demurrer and motion for a directed verdict; since no evidence was presented that the carton was defective, there was no issue for the jury’s determination.

Appellee contends ample evidence was presented for the submission of the case to the jury on the theory of breach of implied warranty and manufacturers’ product liability. Appellee argues that in Marathon Battery Company v. Kilpatrick (1965), Okl., 418 P.2d 900, wherein a battery exploded, our Court said that the liability of a manufacturer is established when it is shown that the plaintiff was injured by an explosion when using the product for its intended purposes. Appellee also cites Kirkland, supra, for the proposition that a plaintiff may prove his cause of action in manufacturers’ product liability by circumstantial evidence and inferences drawn therefrom, since actual or absolute proof of the defect in a sophisticated product may be within the peculiar knowledge or possession of the defendant.

In Kirkland we said that in adopting manufacturers’ products liability that the injury is not of itself proof of the defect, or that the proof of the injury shifts the burden to the defendant. We said in Kirkland, supra, at 1363 of 521 P.2d:

“First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.

“Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer, at the time the product left the manufacturer’s possession and control. Thompson v. Trane Co., Okl., 500 P.2d 1329 (1972). If the action is against the retailer or supplier of the article, then the Plaintiff must prove that the article was defective at the time of sale for public use or consumption or at the time it left the retailer’s possession and control.

“Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property as the term ‘unreasonably dangerous’ is above defined.”

We defined “unreasonably dangerous” at 1362 of 521 P.2d as:

“The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

The cases relied upon by appellee to sustain her contention contained ample evidence for the submission of those cases to jury on the theory of breach of warranty and manufacturers’ product liability but they are distinguishable. In those cases, there was sufficient evidence to sustain a finding that a defective bottle or a defective carton containing the bottles was the proximate cause of plaintiff’s injuries. As an example, in Pittsburg Coca-Cola Bottling Works v. Ponders, (Tex.), 443 S.W.2d 546, a soft drink exploded while plaintiff was preparing to put it in a cooler and the evidence supported a reasonable inference that the bottle was defective. Also, Coca-Cola Bottling Company of Houston v. Hobart, (Tex.Civ.App.), 423 S.W.2d 118, involved a case where plaintiff started to open a soft drink with an ordinary opener and the neck of the bottle suddenly broke. The court found the proof of the defect in the bottle was clear enough; that plaintiff had not misused the bottle, and had exerted only slight pressure upon the bottle with the opener at the time she attempted to open it; and the bottle broke and she sustained her injuries.

Corbin v. Camaden Coca-Cola Bottling Co., 60 N.J. 425, 290 A.2d 441, involved a carton of four 16-ounce Coca-Colas. Plaintiff testified that he picked up the carton and was in a crouched position when the following occurred:

“As I started to lift it, (the carton), something didn’t seem exactly right and I looked down toward it and about that time the bottle burst * *

The plaintiff in Corbin produced an expert witness, and in answer to a hypothetical question based on the evidence, that witness was of the opinion that the carton was defective in one of two respects: “Either there was a tear on the bottom of the carton, such as to enable the bottle to slip from the carton, or else the bottom of the carton was wet * * *.” He said that his tests showed that a carton would have a dry-tear strength of six pounds and a wet tear strength of two pounds. In response to special interrogatories submitted by the trial court, the jury found that there was a defect in the carton which was the proximate cause of Corbin’s injuries.

In Holkestad v. Coca-Cola Bottling Company, 288 Minn. 249, 180 N.W.2d 860, plaintiff purchased the soft drinks, placed them in her car and after she had driven home and attempted to pick the bottles up, one bottle exploded. There was evidence tending to establish the bottle was defective. The court said that where plaintiff “ha[d] proved that he was injured by a product claimed ,to have been defective, and where the claimed defect is such that there is circumstantial evidence from which it can be inferred that it is more probable than not that the product was defective when it left defendant’s hands, absent plaintiff’s own want of care of misuse of the product, there is an evidentiary basis for submitting the issue of liability to the jury on both the theory of negligence and strict liability in tort.”

Appellee argues that it is common knowledge that bottles do not fall from properly made cartons which are not mishandled; and the inescapable conclusion is a bottle fell from the six-pack carton.

Although the evidence establishes that the bottle fell from the carton and exploded when it hit the pavement, and injured plaintiff, these facts were not proof of a defect in the carton and did not shift the burden upon appellant to prove that no defect existed. The carton was not a sophisticated product, but a simple carton made for the purpose of carrying soft drinks. There is no competent evidence whatsoever, direct, circumstantial, or otherwise that would sustain a finding that there was a defect in the carton or that any defect in the carton was the proximate cause of appellee’s injuries. In this connection, the doctrine of res ipsa loquitur cannot be invoked until, as a preliminary proposition, a plaintiff establishes what caused the accident. Furr v. McGrath, Okl., 340 P.2d 243 (1959). Also, the doctrine of res ipsa loquitur was not presented to the trial court and appellee does not rely on such doctrine on appeal to sustain the judgment of the trial court.

Where a defendant demurs to the evidence and requests a directed verdict, this Court will examine the record, and if, upon examination it is found that there is no evidence reasonably tending to support the verdict and judgment for plaintiff, such judgment will be reversed. Safeway Store v. Dobbs (1967), Okl., 424 P.2d 55.

The trial court erred in failing to sustain defendant’s demurrer to the evidence and request for a directed verdict.

Certiorari granted; decision of Court of Appeals and judgment of the trial court reversed.

WILLIAMS, C. J., and DAVISON, BERRY, BARNES and SIMMS, JJ., concur. HODGES, V. C. J., and LAVENDER and DOOLIN, JJ., dissent.