*1 evidence, cerning you have heard reasonably repaired,
could not have you
then find shall for the you
sum as believe the evidence is difference, any, market between the pool
value of the as it con- should have been
structed under the contract and its market constructed, actually
value as it
exceeding-dollars. damages
3.The are to be estimated as
of the date completion pool. of said
The judgment is proceedings reversed for
consistent opinion. with this COMPANY, Appellant, KROGER
v.
Mrs. Pepper Lorene BOWMAN and Dr. Bot- tling Company Mayfield, Appellees.
DR. PEPPER BOTTLING COMPANY OF MAYFIELD, Appellant, Kroger
Mrs. Lorene BOWMAN and the Company, Appellees. Appeals Kentucky.
Court of
Feb. 1967. *2 Paducah,
George Effinger, R. for The Kroger Co. Robbins, Mayfield, Pep-
Farland for Dr. per Mayfield. Bottling Co. of Wheeler, G. Robert Manches- C. James ter, Wheeler, Manchester, Marshall Pa- & ducah, for Mrs. Lorene Bowman. DAVIS, Commissioner.
Mrs. Lorene Bowman obtained verdict judgment $2,000 against Pepper Dr. Bottling Pep- Company (hereinafter Dr. per) Kroger Company (hereinafter and The Kroger) personal injuries for she sustained Pepper when a bottle of from a Dr. fell six-pack paper attempted carton as she Kroger’s from a rack in store. remove Kroger indemnity trial court awarded The Pepper Dr. for it should sum pay ap- Mrs. Bowman. motions peal by Pepper Kroger Dr. have granted separate appeals which are dis- posed of in this opinion. prior case our tried de Battery Transport
cision Dealers Co. v. Distributing Co., Ky., 402 S.W.2d li adopted rule “strict wherein we ability” liability cases, products but Transport principles enunciated Dealers govern controversy inap- and render posite arguments presented much of the able briefs. shopping Kroger’s
Mrs. Bowman was place self-service store. She undertook to Pepper a six-pack carton of Dr. cardboard A shopping into the cart. bottle ” * * * beverage appellants fell from the rely carton and broke cases on those floor; personal sustained support ipsa she cases in of their that res view juries flying complaint glass. loqtiitur inapplicable. No award, is made of the amount but Our attention has been directed Loe- Pepper Kroger both Dr. insist Co., big’s Guardian v. Coca-Cola *3 any neither of them is liable for amount. 910; Ky. Rowe v. S.W.2d Oscar collapsible Co., The Ky., cardboard carton was a Ewing Distributing 357 S.W.2d type, and is shown to have had a vertical other authorities several from split in corner. jurisdictions, support one No witness testified in other ipsa as to how or when the proposition loquitur inap- tear in the carton oc- that res All litigants agree plicable. curred. vertical that the do We not detailed undertake tear in immediately analysis was the after carton the cited of because we authorities the accident. carton is ex- filed as an feel that there was sufficient evidence to hibit appeal; with the record the jury, on verti- warrant submission of case along cal tear is a smooth corner for the reasons now to set forth. crease of carton. Starting liability” from “strict Pepper’s employees Dr. delivered premise Transport, established in Dealers Kroger merchandise to attended supra, liability imposed we that observe placing upon it the Kroger rack or counter. Pepper if it carton in a Dr. sold the by Pepper The cartons used Dr. as were unreasonably dangerous defective condition long they appeared to be serviceable. user, to the ultimate and if the item was serviceability Determination of their was expected con to and did reach the user or by Pepper’s employees “eye- made Dr. on an in change sumer without substantial inspection” basis. The record indicates by Pep Dr. condition in which it was sold
that
question
the carton in
was delivered per.
Battery
Transport
Dealers
Dis
Co. v.
to Kroger
26th, prior
not
August
later than
Co.,
tributing
Ky.,
402 S.W.2d
6th,
September
accident on
1961. Moreover,
liability
though
exists even
Kroger
by
any inspection
made no claim of
Pepper
possible
Dr.
all
care
exercised
employees
its
of the carton at
time.
preparation
product
and sale of the
(assuming
original
condition).
defective
Mrs. Bowman testified that she did not
Id.,
p.
apparent,
determine whether indemnity Dr. Kroger sub award constituted of the occurrence stances Pepper. Although Kroger liable negligence”—but evidence stantial Bowman, from in- precluded it is of Mrs. not and circumstances the nature whether strong ad- ser, demnity Pepper. principles has been one of the against Dr. who rule, Co., that it concedes Pittsburgh of Brown Hotel Co. v. Fuel vocates of applicability. governing Ky. Strict limitations S.W.2d some Ed., L. Torts, Pepper Dr. 3rd William here. furnished defective Law of See carton; Pep- Prosser, Kroger duty owed to Dr. 682: page per it that the seeing matter of concerned, no far as the “So safe, though carton was it did owe even in- personal yet one has recovered customer, duty to its own Mrs. Bowman. liability with- juries, on the basis strict protect Mrs. Kroger failure of So the fairly be called privity, who out could may Bowman not be used means as least a user. product, or at consumer of the Pepper primary Dr. from its liabil- sulating beauty shop has recovered A customer ity. defend- with the hair was treated when her who dye, has a housewife ant’s and so judgment is affirmed. rab- preparing contracted tularemia while passengers cooking, bits for well
OSBORNE, Judge (dissenting). airplanes. Members automobiles purchaser, and family of the final opinion in majority I from the dissent employees,guests, and who consume donees set case for reasons to be hereinafter been allowed goods have or use the out and I further believe it was a mistake *5 others, come But who have recover. Dealers when this Court in the case of injured product and been contact with the Distributing Transport Company Battery v. use, it, consumption or by without Company, Ky., 402 abandoned S.W.2d by an auto- pedestrian hit the case of the the as it relates to settled law of this state mobile, by the bystander injured or the the the of one involved in sale bottle, far been exploding beer have thus products and and distribution of consumer appears recovery. explanation denied known as substituted for that law a doctrine not the the that these are to lie in fact liability” “strict lia- or “manufacturers seeking to reach people the seller is whom bility.” doctrine “strict liabil- they do have goods, with his and ity” in con- the sale and distribution of implied upon any as- rely same reason to products interesting sumer has had an pres- safety; and that social surance of country. history controversial in this public opinion which have sure and rule, Prior to advent of this manufac- change in the law have responsible for the prod- turers and of consumer distributors consumer, rather than centered about only where ucts were liable to their users stranger. by product there was defect in the caused a negligence in processing or manufacture found, ‘warranty,’ is “The when it is product of it or where the was not suitable quality, rather clearly of merchantable purpose for the was sold for which it special pur- buyer’s for the than of fitness (warranty). departure from The first pose, liability unless is no strict products. involving rule was food cases way defective product some However, in the some few courts ’50’s by the defendant. when it was sold began apply the doc- United States to “Notwithstanding rather unclear products, mostly in- a trine to other those as, contrary, it use, looking Florida decision to the bodily tended for intimate liability if a soap, clothing, ciga- fairly seems clear there is dye, detergents, hair sold, kind cus- rettes, supplies. product As standard is surgical vaccines and market, cigarettes, California, tomarily and that York, Illinois on New now a matter beyond whiskey, or butter do not become gone and a few other states have they liability merely because of strict applying the doctrine items for to but cancer, alcoholism, lung personal Pros- known to cause Professor L. use. William Nor, recognized a probability, that manufacturer incurs in all or attacks. heart liability he warranty when an absolute when an article that any breach of is there placed market, example knowing a on that it is to experimental as for product, sold, unsafe, proves inspection, be to have used without to be is drug which is known injury causes human warning to defect appropriate long as there is so beings.’ He follows this with statement buyer. poli- thoroughly annotated discussion of the relieve the liability does not “The strict cy Tray- reasons for his conclusion. Justice necessity his plaintiff sustaining nor the writer that he still ad- has advised in- proof, first of all burden of It be heres to this view. noted should by a defect jury caused he has suffered was recommendation is limited one. Strict second, defect product, in the applied only is be manufac- product the hands left existed product whose use turer intended for the defendant.” inspection. lim- without further This would part it the rule assemblers of for the most above, where we see that From products finished not place the would applied, carries doctrine is parts same burden Thus manufacturers. burden must show: manufacturer of McPher- the wheel Privity purchaser or —that Buick Company son could not have Motor reached one intended strictly been- held under this rule. liable product. per- limit the would also rule case of property sonal with contrasted merely quality defi- 2. Defective —not damage requires ‘injury for it human cient use. for the consumers would, Thus, beings.’ lia- mean strict 3. That defect existed when bility Corpora- in the Continental Motors product the distributor sold outset, tion case cited at the for that manufacturer. only damage airplane. Even volved *6 n sug- with these he limitations the doctrine from product 4. That differs other gests adopted. has been not products on market. standard an It seems clear from the foregoing proof burden Sustain the of liability advocate of for manufac- strict defect injury was caused any proposal upon turers base his cannot product when and that the defect existed judicial substantial trend in think- existing product of defendant left the hands ing. This a in which it can is not situation the action. recognize ought be claimed that ‘we articles law review One of better actually doing.’ what the On courts are úpon subject be in 24 Ten- can found contrary which runs proposal is There, Professor nessee Law Review 938. authority. counter to the mass of current of “strict Marcus Plant details the source L. philosophy
liability” social doctrine recognized immediately that should “It be argu- pointing it. to some of the behind In adoption of this is the motivation for rule, support Professor ments rule, primarily are not proponents Plant writes: question consti- concerned with the of what justice Their argument for tutes for the manufacturer. cogent “The most strict pro- principal is with is judicial from is that concern what sometimes liability a source pounded Traynor engineering,’ Roger euphemistically of called ‘social Justice J. frequently be ex- Supreme in which out to crass In turns Court of California. par- pediency any seeking its without Company of ends Escola v. Coca-Cola Fresno, regard In this concurring principles. he ticular for basic opinion in a stated as- they the manufacturer to my ‘In be instance ask frankly: opinion it should not society op- reform, everyone else in pass simply sume burden and it on be- while entirely legal different they position under an cause consider him to be erates sound, approach philosophy.” do so. But if this is doctrine and why process carry should not still we pointed in a rather foregoing, pass further? If the can manufacturer manner, of to some directs our attention society injuries arising on to the cost of all problems face and which should we product why defects, from he should whole-heart- give due consideration before required be pass society also on to edly making it a adopting this doctrine arising injuries in- losses from all other state, as was done part of the law of this curred in manufacturing the course ac- of are Transport case. There the Dealers tivity ? example, suppose For an automobile question and I am afraid two sides to the delivery manufacturer has a truck which closed off we have taken one and ourselves another, carries plant motors from one other. clash from a fair view of the truck, operated being that this while ably put principles is most here involved care, pedestrian. with due injures Isn’t by Seavy following in the terms: production’ this as much a ‘cost of element injury product arising from defect? “ determining ‘In tort whether Ought we not to hold that manufacturer caused, liability when been harm has strictly respond liable for point focal has been of conflict whether protests easy his with the answer that he irrespective harm one should be liable for charge price should product his for fault. The a state of law has will take into account a certain number protect flux in its two basic in- desire to injuries inevitably of such going se- terests individuals—the interest occur because activity? of his industrial curity and the interest freedom of ac- If this general policy expedient for in- requires protection tion. The first juries arising product defects, it is person been harmed who equally expedient for others. Yet activity result of the another be should it has argued not been persuasively that irrespective' compensated by the other * * * policy such a should be followed. fault; protection his of the second re- quires person that a harms who another “If imposition of strict required compensate the should be other product defects is to founded on the intentionally activity expediency desirability distributing wrongful an undue lack or indicated (pardon expression!) socializing loss consideration for the of others. interests *7 general consuming over the public, would any given place At time and the law is the it not be a more honest and it course would competition resultant from the be- derived not be socially more and economically de- concepts.’ tween these The ul- two basic sirable, frankly governmental a establish timate the issue decision of considered through mechanism which losses could paper depend this will on which of these fairly through distributed taxation? Seavy, concepts accepted.” Princi- two The writer step, does not such a advocate Torts, ples (1942). of 56 Harv.L.Rev. 73 preferable but it is adoption legal of a doctrine which accomplish applied, seeks it the Where the doctrine is same by ordinarily result throwing usually this burden on limited to those articles general upon by manufacturers in where person its inci- consumed the used the or by dence will be by the in- Recovery determined chance or is limited to individual. unsystematic capricious strangers. Re- factors. tended user and denied to is dubious policy single par- covery social a only out a can when there is be had group society ticular proven and make its at the time of defect to have existed members or some delivery. Recovery of its bear be had for members the can may very property damages. cost what personal injury, be a commendable ' court, in one Transport, In beer carrier. The court said that Dealers this bottle of the a sweep, managed negligent all there was no fail- showing broad to violate ap- defects, inspect The doctrine was ure to carrier for established rules. plied defective in a transaction between that used a or inad- commercial defendant gas. equately carrier, trucking jobber a a in bottled or that de- firm and constructed involved, guilty negligent were failure and which fendant was The bottles collapse. litigation, might warn that the carrier subject had been premises for an extended plaintiff Fi- “Plaintiff Beck v. United States proof period of time and was delity Guaranty La (1954, App) & Co. exist- of a defect whatsoever in the record injuries 120,sought 2d sus- damages So delivery. (This fact ing at the time of wife, where, tained while she was court.) The doctrine assumed was store shopping grocery when a store re- non-personal item applied was employee cartons of was 6-bottle stacking damages. property covery was allowed for Coca-Cola, iri man- one of the bottles some above, painfully In it becomes view the carton, fell dislodged ner became from a given an- apparent that had this court shattered, piece floor and was the well- opportunity other to subvert glass entered from shattered bottle doctrine, restricting principles this settled eye. recovery sought wife’s Plaintiff that we surely so. Now it would have done company ground Coca-Cola we principles with understand the the bottle pasteboard containing let hand to dealing, us turn our deteriorated which broke was either torn or plaintiff present entered case. Here dropped to to such an that the bottle extent a six- removed store and defendant’s- lifted being the floor carton was as the it pack a rack where of cold drinks from grocery employee. Affirming store placing process it resting. was In the recovery against judgment denying cart, fell to the bottles her defendant, pointed court out gláss shattering cut floor and broke. grocery manager who, following the store accident, found After it was her foot. accident, con- saw had the carton which one corner. that the carton was torn at broke, failed to in- tained the bottle which magic applies the formula court then This testimony any in his clude reference liability,” repeats sacred words of “strict carton, carton, condition of the and the ipso Transport, adopted in Dealers first n custody possession which was in ex- facto, plaintiff. No judgment for the grocery pro- employee, was not store facts, no bother with amination of the light duced at the In these obser- trial. of- legal thought of common principles, no vations, persuaded said, court owner, store justice just find — company bottling defendant the customer. pass it on to for he can in turn liability. free from of so- gains and all the rest ciety Queen City loses. “Rockwell Co. Ops 86, (1943) App 73 Ohio Ohio unique upon its facts. is not This case 39 Ohio L NE2d was an Abs practically others been several There have action against a bottler and distributor of *8 in other identical in their factual situations injuries by soft drinks for sustained reported these jurisdictions. Several of purchased who a soft drink six bottles of we will re- 326, in all of which 81 A.L.R.2d by bottled and distributed defendant view. pasteboard fur- carton which defendant nished; plaintiff Brewing carrying while Behringer v. Gretz was “In William 249, collapsed, A2d carton it Storey 169 and the bottles fell and Del) (1961, Co. [3 365] broken, by the were and plaintiff not to establish struck was held was the evidence glass. court, for flying affirming judg- defendant beer distributor liability of favor, plain- in a cardboard ment defendant’s said that collapse very said, argument assumed the prove merely it was alleged tiff and offered to circulation, required to plaintiff factors which was put that in defendant carton prove, presumption that being of defendant’s there collapsed it while out control, when it left defend- possession beyond carton was defective defendant’s it possession evidencethat was. act of de- ant’s and no mentioning no act or omission to said, alleged Moreover, in court as to therewith and leav- fendant connection on inspection, or lack evidence ing speculation utter what did did inspected placed subject all were happen carton after it was was that cartons by reuse, only those in whom the hands of retailer from defendant before plaintiff that were re-em- purchased good said found to be in condition it. The court ployed. of ac- there facts failed to out a The court that these make cause commented warranty inspect as to implied duty tion breach of an was no defendant use, ordinary particular product or an had fitness for carton after the bottled added, and, negligence case, sold there- it was and delivered to retailers who inspection they car- cursory (of the after had it until 'so-called exclusive control of tons)’ by negligence, defendant amounted sold it plaintiff. any an ‘there utter lack causal connec- Cunningham Parkersburg in “Plaintiff v proxi- tion. between that and being Bottling (1953) Coca-Cola W Va Co. injuries
mate cause of the here.’ 409, sought damages for 74 SE2d “Robey v. Richmond Coca-Cola juries when, re- sustained while she was (1951) Works Va SE2d was moving cardboard of six bottles carton an injuries plain- action for sustained Coca-Cola from a in which rack the store tiff purchased a carton of six bottles of employed, she the carton was bottom of defendant, produced by Coca-Cola at fell out the bottles fell to and some of grocer’s a retail and, carry- she while floor appeared was and burst. It the carton that ing hand, hef question by the end or bot- been placed had in the rack broke, tom of the carton three bottles of defendant’s but testified employee, no one burst, pavement Coca-Cola fell question to the as to the condition of the carton and plaintiff’s by foot flying glass. store, was cut delivery at the of its or time Plaintiff, testimony having that injury; introduced at was time before the question carton in particular dam- nothing was worn and long to show how aged, question contended jury except that a was store, carton had remained made out as whether defendant had been that had it been there not than three less is, negligent, that days. whether the judgment plaintiff’s carton con- Reversing a tained a defect which favor, was discoverable the court held the insuffi- evidence ordinary defendant in the exercise of care cient to warrant that the conclusion defend- inspection. court, reasonable proximate negligence ant’s was the cause affirming judgment favor, plaintiff’s pointed defendant’s injury. It was out plaintiff held that had that, most, failed to show that at the evidence that established defendant guilty paper was carton from which the bottles proximate was the cause of the accident and fell was defective at the time plaintiff’s injuries. pointed and, it rack, out lifted from the metal it gist said, plaintiff’s ample opportunity case was there was for cus- pre- carton was worn and defective from tomers in to have the store created the con- vious posses- use when left defendant’s dition which caused the carton become placed sion store, and was ipsa in the retailer’s defective. The court also held the res loquitur defect could or should inapplicable, have doctrine out pointing inspection been discovered oppor- reasonable showed evidence *9 reuse, committing tunity before negligence the carton to and existed for affecting made; but, carton, that proper inspection part persons not on was than other 348 moreover,
defendant, and, the carton is was not sufficient to prima create a facie not de- under exclusive control of the negligence. Styers case of v. Winston injury. fendant at time Co, Bottling -504, Coca-Cola 239 N.C. 80 negli- court stated further that 253; actionable S.E.2d Enloe Charlotte v. Coca-Cola gence part 582; on the of defendant could not Co, 305, Bottling 208 N.C. 180 S.E. establishing 542, be inferred from facts Boyles, Lamb v. 192 N.C. 135 S.E. re- 464, that 589; Taylor, defendant sold and delivered for 49 A.L.R. Dail v. 151 N. sale, placed 284, a rack furnished 135, L.R.A,N.S, C. 66 28 949. S.E. display to the retail defendant store for that she entitled argues “Plaintiff here is
purposes.
paper
packs
Coca-Cola
upon an im-
to recover from the defendants
each,
six
that the car-
containing
bottles
plied warranty
which she
that the carton
type generally
tons
in the
were
used
transport
used
bottled drinks
trade, and
store
that customers of the retail
fit
There is no evi-
purpose.
fact
for that
packs.”
sometimes handled the
dence as
the kind of container. Was
n
Phillips
Pepsi-Cola
In
v.
Com-
paper
metal
?
is common
or
or
wood
pany,
30,
728,
which is
256 N.C.
125 S.E.2d
kind
knowledge that
of the
bottled drinks
case,
plaintiff pur-
North Carolina
put in
purchased by plaintiff
frequently
carton,
Pepsi-Colas
chased
in a
six
paper
for conven-
or cardboard containers
had a
it.
the carton
handle on
She carried
transportation.
assumed
If it be
ience
right
her
hand
some ice cream
plaintiff
that
used was
the container which
paper
had car-
bag
her other hand. She
character,
is
still de-
the evidence
ried this
from the
load some distance
store
why the bot-
any explanation
void of
as to
shot,
something
she heard
like a
True,
it fell
alleges
fell.
plaintiff
tle
pain
felt
leg.
her
The decision
But there
because of a ‘rotten bottom.’
court
affirming a motion to dismiss com-
fact, nor
is
establish that
is
nothing to
plaint
as
reads
follows:
bottom, if
explain why
rot-
anything to
ten,
is
in that
There
evi-
condition.
complaint
seemingly
"The
is
bottomed
plaintiff’s
dence
one of
witnesses
theory
negligently
have
defendants
an ice-
the bottled drinks
from
taken
were
duty owing
plain-
failed to
perform
put
box and
in the container.
testimony
Manifestly
tiff.
plaintiff’s
insufficient
negligence
to establish
unless
pave-
fell to
fact that a
“The
bottle
fall
mere
of the bottle from
con-
plaintiff was
ment from a container which
brings
tainer
into play the doctrine of res
establish
no
sufficient to
handling is more
ipsa loquitur, imposing
on defendants
warranty
breach
the condition
of a
duty
why
how
explaining
bottle
neg-
than it is to establish
container
apply
plain-
fell.
‘For the doctrine to
ligence in
manufacture. Prince
prove
tiff must
(1) that there was an
Smith,
Af-
254