Aрpeal from a judgment of the district court and from its order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial.
Plaintiffs, Francis M. Kerr and hеr husband, David L. Kerr, sought to recover damages from defendant, Corning Glass Works, a New York corporation doing business in Minnesota, on the theory of striсt liability for breach of an implied warranty, for injuries suffered by her, medical expense incurred by Mr. Kerr, and for property damages sustained by both оf them due to the breaking of a cooking dish manufactured by defendant. The jury awarded plaintiffs damages of $1,500.
On June 1, 1962, plaintiff David Kerr’s mother purchased three or four clear glass baking dishes manufactured by defendant, including the one involved here, at a hardware store in Silver Bay, Minnesota. Thesе dishes were displayed unwrapped on a shelf within the reach of customers. All contained the imprint “Pyrex, oven proof.” “Pyrex” is a trade-mark оf defendant.
In a memorandum made a part of its order denying defendant’s motion for judgment n.o.v. or a new trial, the trial court stated that the jury could reasonably have found that the Pyrex baking dish was prоperly used by Mrs. Kerr on six to eight occasions over a period of six months; that there was no testimony to compel a finding of improper hаndling by intermediate parties; and that on the day in question, while proper use of it was being made, the dish suddenly exploded and disintegrated, strewing glass abоut plaintiffs’ kitchen. We, however, can find no evidence produced by plaintiffs that would support an inference that there was a defeсt in the product when it was manufactured or when it left defendant’s factory.
As we view the record, the pertinent issue before us is whether the evidenсe is sufficient to sustain the verdict under the theory of a manufacturer’s strict liability for selling a defective product.
We think not. See, McCormack v. Hаnkscraft Co. Inc.
Each of the following elements must be established in order for plaintiffs to recover under the rule of strict liability:
(1) Plaintiff was injured.
(2) The injury was caused by defendant’s product.
(3) The injury occurred because defendant’s product was defective.
(4) The defect was present in the product when it was sold by defendant.
See, Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791, 840, relied upon by the parties and trial court herein.
Defendant does not dispute the facts of injury and damage, or that both were caused by the breaking apart оf the glass baking dish manufactured by it. Defendant maintains, however, that plaintiffs have failed to establish that the injury occurred because Coming’s product was defective and that the defect was present in the product when it was subject to defendant’s control.
The action was tried on the thеory of res ipsa loquitur, the inference being that a heavy-gauge glass baking dish, represented as “oven proof,” would not explode in normаl use unless it was defective. The trial court apparently relied on Gardner v. Coca Cola Bottling Co.
Coming’s expert, who had been in its employ for more than 30 years, testified as to how glass of this type came to be used for cooking and as to the manufacturing, inspection, and packaging processes of defendant. He stated that the glass was constructed by a carefully controlled
Defendant’s expert further testified that nearly all of the glass from plaintiffs’ dish was sent to him for examination and that because of his examination he had concluded that this particular dish was caused to break by stresses created in the glass by the heating and cooling of liquids (cooking oils, animal fats, and water) within a bruise (“check”) on the inside bottom surface of the dish. He stated that some force — possibly dropping another glass dish on it from a height of a foot or so; hitting it hard against a faucet; the dish hitting a sharp object; or a sharp object hitting the dish — would be required before а fracture of this type would occur.
It is our opinion the evidence here was insufficient to sustain the jury’s award of damages under the theory of а manufacturer’s strict liability for selling a defective product. Plaintiff admittedly submitted no evidence that the dish was defective when it left defendant’s faсtory. Although the rule of strict liability, as pointed out in McCormack v. Hankscraft Co. Inc. supra, does not require plaintiff to prove negligence or that the injured party was in privity with the manufacturer, it is necessary under this rule to prove a defect in the product before it left defendant’s factory. Hеre, we have no such proof. The dish was out of the control of defendant from between 7 and 47 months before the explosion occurrеd. As it was on the dealer’s shelf for some time, it is reasonable to assume that during that time it could have been handled and examined frequently by emplоyees and prospective purchasers. Thereafter, on June 1, 1962, when plaintiff’s mother purchased the dishes at the hardware store, they were taken to the bridal shower the same day. There they were again handled and looked over by the guests, and no apparent defects were observed. Some eight months later, after it had been put into use by the owners six or eight times with no defects having been observed, the dish explоded. Since there was no evidence produced by plaintiffs from which a jury could find that it was defectively manufactured or that it was defectivе when it left defendant’s factory, it is our opinion under the facts and circumstances here that the judgment for plaintiff should be reversed and judgment entered for defendant.
Reversed.