Pat Stalter, the appellant, was injured when a bottle fell through the bottom of a soft drink carton and broke while she was shopping at Food City, a Little Rock, Arkansas, grocery store. She sued Food City and Coca-Cola Bottling Company for damages. After hearing all the evidence, the trial court granted both appellees’ motions for directed verdicts. We review the trial court’s direction of a verdict by considering the evidence in a light most favorable to the non-moving party. Generally, if there is any conflict in the evidence, or we find the evidence is such that fair minded people might have different conclusions, then a j ury question is presented and a directed verdict will be reversed. Keck v. American Employment Agency, Inc.,
Appellant was in Food City on December 10, 1981, with her employer, shopping for groceries. She lifted a carton of one-liter Coca-Cola bottles into her basket, and as she did, one of the bottles fell through the bottom of the carton and broke. A piece of glass went through her slacks, boot, and hose, and cut her leg. As the bottle dropped, she said that she hit her right hand against some object and injured it. She was immediately referred by a store employee to a clinic where the cut was stitched. She received other medical care later. Her employer verified her account and said that the carton was “mushy” and looked as though it had been wet for some time.
The Coca-Colas were in a display that was maintained by Coca-Cola Bottling Company. Two or three times a week the company visited the store, cleaned the shelves, and replenished and rotated the stock. A Coca-Cola employee testified that they do not manufacture the cartons they use. He said that their process insures that only a minimal amount of moisture is on the bottle when placed in the carton. Furthermore, he testified that the tensile strength of the carton is actually increased by moisture. The cartons are designed to be used three times but the employee stated that approximately half are reused and those are only reused once. Only a perfunctory visual inspection is made before reuse.
The appellant argues on appeal that the evidence should have been allowed to go to the jury on three theories: res ipsa loquitur, strict liability and breach of implied warranty. We find that the appellant’s case should have been taken to the jury on the theories of res ipsa loquitur and strict liability. Counsel for Coca-Cola argues on appeal that res ipsa loquitur was not pleaded. That theory does not have to be pleaded and the argument was not made below to the trial court. We note here that the complaint merely stated the circumstances of the accident and that there was a defect in the carton. Various theories of liability were vaguely argued to the trial court and discussed on appeal by all parties.
Res ipsa loquitur is a doctrine that, when applied, allows the jury to infer negligence from the plaintiff’s testimony of the circumstances surrounding the accident. W. Prosser, The Law of Torts, § 40 (1971). The jury is permitted but not compelled to find negligence. AMI Civil 2d 610. The procedural effect of the ápplication of the doctrine is that the burden shifts to the defendant to go forward with evidence to offset the inference of negligence. AMI Civil 2d, 610 Comment, Coca-Cola Bottling Co. v. Jones,
Problems in applying res ipsa loquitur arise where, as in this case, there are plural defendants and, although the plaintiff has been injured through negligence, he cannot positively point to the defendant responsible. The doctrine may be applied to plural defendants. Nichols v. Nold,
In Loch v. Confair,
In Nichols v. Nold, supra, a soft drink bottle exploded, injuring the plaintiff. The Supreme Court of Kansas, relying on Loch v. Confair, supra, held that res ipsa loquitur should be applied to both the grocery store and the bottler because:
The real test is whether defendants were in control at the time of the negligent act or omission which either at the time or later produced the accident. The fact that plaintiff did not know which one of the defendants was the cause of the accident, or when or where it took place, was the reason for naming them as parties defendant.
A different result was reached in James v. Childs,
Although the facts of James v. Childs, supra, are very similar to those in this case, we disagree with the court’s reasoning. Once the appellant explained how the accident happened, it was incumbent upon Coca-Cola and Food City to present proof that the accident was not their fault. Indeed, they both did try to shift the blame. Here, Coca-Cola admitted that they had control over the display; that they arranged it, replenished it, and otherwise maintained it. A Food City employee testified that Food City employees occasionally replaced drinks when the display was empty or replaced a carton that was out of place in the store. Beyond that evidence of shared control, both appellees also had a duty to the appellant. Food City had a duty to exercise ordinary care to maintain its premises in reasonably safe condition. Davis v. Safeway Stores,
We also find that the appellant presented proof substantial enough to raise a jury question as to strict liability. To sustain a claim of strict liability, the appellant must prove (1) that she sustained damages; (2) that the defendant was engaged in the business of manufacturing or assembling or selling or leasing or distributing the product; (3) that the product was supplied by the appellee in a defective condition that rendered it unreasonably dangerous; and (4) that the defective condition was a proximate cause of appellant’s damages. Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983); E. I. Du Pont De Nemours and Co. v. Dillaha,
The appellant argues that a jury question is presented on the issue of breach of implied warranty. See Ark. Stat. Ann. §§ 85-2-315 and 85-2-314 (
Each of the appellees has filed a cross-complaint against the other. It will be for the jury to determine the respective liabilities of the parties, if any. We reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.