Kearse v. Food Fair Stores, Inc.

— In an action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Queens County (Linakis, J.), entered May 14, 1982, which, upon a jury verdict, inter alia, was in favor of defendant Food Fair Stores on the issue of liability.

Judgment reversed, as a matter of discretion, without costs or disbursements, and new trial granted as to all issues.

This is an action to recover damages for personal injuries suffered by plaintiff as a result of an exploding soda bottle. The facts are not complicated. The plaintiff, James Kearse, was assisting his mother and sister with grocery shopping at one of defendant Food Fair Stores, Inc.’s supermarkets. He was injured when a bottle of Coca Cola which they were purchasing exploded at the checkout counter. Plaintiff brought this action against Food Fair, alleging causes of action in negligence and implied warranty. Food Fair, in turn, impleaded the third-party defendant Coca Cola Company, Inc. A fourth-party action by Coca Cola against Channel Distributor, Inc., was discontinued and is not at issue on this appeal.

At the conclusion of the trial the jury returned a verdict as follows:

“the clerk: How do you find as to the negligence question?

“the foreman: We, the jury, do not find that there was negligence by the defendants approximately [sic] causing the accident.

“the clerk: And as to the breach of the implied warranty, how do you find?

“the foreman: We, the jury, find for the plaintiff that the defendant, Coca Cola Company was guilty of breach of implied warranty and said breach was the proximate cause of the accident.

“the clerk: As to the breach of the warranty, what is the percentage you find?

“the foreman: Zero percent Food Fair Stores; one hundred percent Coca Cola Company.”

We now reverse, in the interest of justice, and grant a new trial. In our view, the instructions to the jury were so fundamentally erroneous and confusing that, notwithstanding the failure to object thereto, a new trial is mandated (see Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.09).

A crucial aspect of this case was the fact that plaintiff brought his action only against the retailer, Food Fair, and that Coca Cola’s only role in the case was as a third-party defendant on Food Fair’s claim for indemnification. Yet, in issuing its instructions to the jury, the court continually referred to both Food Fair and Coca Cola as the “defendants”, and, while the court made a slight passing reference to Food Fair’s claim against Coca Cola, the charge as a whole failed to convey to the jury the legal distinctions between the defendant and the third-party defendant. This lack of clarity in the charge may very well have led to the jury having found “for the plaintiff” on a claim against Coca Cola in spite of the fact that plaintiff had commenced no action against Coca Cola. More significantly, however, the court specifically charged the jury that, in order to recover on either of the theories asserted in his complaint, plaintiff had to establish liability on the part of both Food Fair and Coca Cola. The court charged as follows: “I charge as a matter of law, that in order for the plaintiff to recover he has the burden of proving by a preponderance of the credible evidence that each of the defendants was negligent, and that this negligence was the proxinate [sic] cause of the accident, and if you find that the plaintiff has sustained both of these elements you must find for the plaintiff, provided, however, that you do not find that the plaintiff was guilty of contributory negligence as I have previous [sic] explained. Second, I also charge you as a matter of law, that the plaintiff in order to recover, has the burden of proving by a preponderance of the credible evidence both that the implied warranty was breached as to each defendant and two that the breach of the implied warranty was the proximate cause of the accident. If you find by a preponderance of the credible evidence that the plaintiff has established both of these elements you must find for the plaintiff. If you find that the plaintiff has not sustained his burden, then you must find for the defendant and then that is the end of the plaintiff”.

Thus, the jury was instructed, in essence, that in order to recover on his claim of negligence as to Food Fair, plaintiff had the burden of establishing negligence on the part of Coca Cola as well. We cannot say that the jury’s finding “as to the negligence question” that “We, the jury, do not find that there was negligence by the defendants approximately [sic] causing the accident” was not prejudicially affected by the erroneous charge. The jury may very well have been under the impression that in order to find for plaintiff on his negligence cause of action it was required to find negligence by both Food Fair and Coca Cola. These errors in the charge were so fundamental and the confusion so substantial that a new trial is required. Bracken, Brown and Rubin, JJ., concur.