GIANT FOOD, INC., and Marilyn Seigel 

Sheeskin, Pers. Rep. of Nathan Seigel

v.

WASHINGTON COCA-COLA BOTTLING COMPANY, INC.

No. 93.

Feb. 4, 1975.

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William N. Rogers, Rockville (William D. Appler, Silver Spring, Carr, Bonner, O'Connell, Kaplan & Thompson, Rockville, on the brief), for Giant Food, Inc.

Linda D. Schwartz, Rockville (Jacob Sheeskin and Sheeskin & Hillman, P.C., Rockville, on the brief), for Marilyn Seigel Sheeskin. 

Albert D. Brault, Rockville (Brault, Scott & Brault, Rockville, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

In this case, we are presented with formidable questions of products liability law arising from an action for injuries caused by an exploding Coca Cola bottle. The damage suit, brought in the Circuit Court for Montgomery county against Giant Food, Inc. (the retailer) and the Washington Coca Cola Bottling Company, Inc. (the

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bottler), resulted in a directed verdict for the defendants. On appeal from that decision, we remanded the case for further proceedings without affirmance or reversal in an unreported per curiam opinion.

On remand, the case was reopened in the circuit court to allow the inclusion of an additional stipulation. Renewed motions for directed verdicts were then granted on the basis of the original evidence and the added stipulation. On appeal from that decision, the Court of Special Appeals, in Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874 (1974), affirmed the judgment in favor of the bottler, but reversed the judgment in favor of the retailer and remanded that case for a new trial.

The incident from which this appeal stems occurred on Friday, October 23, 1970, when the late Nathan Seigel (the customer) was carrying a six-pack carton of Coca Cola from a display bin to a shopping cart in one of the retailer's stores.1 While he was so engaged, one or more of the bottles exploded causing him to lose his footing, fall to the floor and sustain personal injuries. His case against both defendants was posited on the doctrine of res ipsa loquitur and breach of implied warranty. The Court of Special Appeals held that he could recover from the retailer under both theories, but from the bottler under neither one. The customer and the retailer sought review by petitions for Writs of Certiorari which we granted.

The relevant testimony was undisputed. The customer testified that the cartons from which he selected his six-pack were displayed in typical supermarket fashion. They were stacked four cartons deep and five or six cartons high with shelf-like separators formed by retractable plastic sheets. The carton he selected was not defective in any way; nor was there any liquid in this area of the store. It was unnecessary for him to reach very high to lift the carton. As he did so, he placed four fingers of his right hand through both handles of the cardboard carton which was located near the top of the stack. While the carton was lifted and removed from the bin, it neither touched nor was touched by anything other than his hand. Nor did anything fall as this occurred.

After the customer had taken three or four steps toward a shopping cart, there was an explosion which knocked the carton completely from his hand. As he attempted to move, he lost his traction and fell to the floor, which immediately had become slippery from the Coca Cola. According to the store manager, the explosion was of sufficient force to shatter three or four bottles. No effort could be made to examine them, however, since the broken glass was swept up and removed by store employees.

The evidence shows that the bottles of Coca Cola delivered to the retailer during October 1970 were stored for a maximum of five days in an area maintained at a constant temperature of 72 . Once delivered to the appropriate aisle in the store by an employee of the bottler, the cartons of Coca Cola were removed from wooden cases and stacked in the bin by the retailer's employees. During the two to five days in which they remained on the shelf, they might have been periodically rearranged and restacked by store employees. There was also testimony that cartons which occasionally might have been abandoned by customers at various locations throughout the store would have been returned to the shelves by employees.

The retailer's store, of course, is of the self-service variety, which means that the only manner in which a customer can purchase an item is to select it himself. There are occasions when a customer may choose an item, then change his mind and

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return it to its place. The testimony here, however, shows that Coca Cola customers ordinarily do not change their minds after they have removed a carton from the shelf, but when they do, they 'never' or 'hardly ever' return the carton to the shelf from which it was removed.

Cartons abandoned about the store in this manner are normally found in various places such as on the freezers, the floors or other counters.

The bottler's plant manager testified that it purchases its bottles from several different manufacturers. All of the bottles which it buys are manufactured in accordance with standards fixed by the National Soft Drink Association. At its bottling plant, all bottles are visually and electronically inspected in order to discover defects. Defective bottles which escape detection would, nevertheless, break when subjected to pressurization. Between 1967 and 1970, the bottler produced a total of 288,000,000 bottles, but received only 11 complaints of exploding bottles. The uncontradicted evidence revealed that there are three primary causes of the explosion of a Coca Cola bottle: a manufacturing defect, a thermal shock or an impact break resulting from mishandling.

The bottles are moved by machine throughout the entire bottling process, from their unloading when delivered to the plant by the manufacturer, though the washing, sterilization, inspection, pressurization, filling, capping and ultimate packaging in cardboard cartons, each containing six bottles of Coca Cola, and then in wooden cases, each containing four six-packs. Once filled, the bottles are stored in a ventilated but non-refrigerated area of the plant for a maximum period of two weeks prior to their delivery.

The bottles are delivered in non-fefrigerated trucks, especially designed to avoid the possibility of impact damage during transit. The Coca Cola is handled non-mechanically only when the bottler's employee removes the wooden cases from the bottler's truck, stacks them four or five high on a hand truck, carries them from the rear of the retailer's store to the aisle in which they are to be displayed, and stamps the price upon the cardboard cartons. The bottles in this case were delivered on either the 19th or 21st of October 1970.

In this Court, the retailer argues for reversal of the Court of Special Appeals decision on the grounds that the customer is entitled to prevail against it neither in negligence nor in warranty. The customer, in addition to urging affirmance of that part of the decision, argues that the Court of Special Appeals erred in rejecting the claims based on both negligence and warranty against the bottler. The latter, content with the decision, urges that we affirm. First, we consider the claims of negligence, which, as we have indicated, are bottomed on the doctrine of res ipsa loquitur.

1(a)

The parties here all agree that the customer has established the first and third; the contention advanced by both the retailer and the bottler is that he has not established exclusive control.

In Leikach we adopted the view that the burden upon one who relies on res ipsa loquitur in an exploding bottle case does not

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require the exclusion of every possible cause of injury other than that of the bottler's negligence, but does include proof that there is a greater likelihood that injury was caused by the defendant's negligence than by some other cause. Other state courts have applied a similar test. In Evangelio v. Metropolitan Bottling Co., 339 Mass. 177, 158 N.E.2d 342, 345 (1959), which we cited with approval in Leikach, the court said:

'. . . (Plaintiff) is not required to exclude every possible cause for her injuries other than that of negligence; she is only required to show a greater likelihood that her injury was caused by the defendant's negligence than by some other cause. . . .'

Also in accord are Holkestad v. Coca-Cola Bottling Co. of Minnesota, Inc., 288 Minn. 249, 180 N.W.2d 860, 865 (1970) and Zarling v. La Salle Coca Cola Bottling Co., 2 Wis.2d 596, 87 N.W.2d 263, 267 (1958).

Applying this rule, the Court of Special Appeals held:

'On the basis of the record before us we are convinced that the evidence was sufficient to show a greater likelihood that Mr. Seigel's injury was caused by the retailer's negligence rather than by some other cause. Having met his burden of proof, appellant was entitled to have res ipsa loquitur applied and to have the jury pass on the question of Giant's negligence. . . .' 20 Md.App. at 620, 318 A.2d at 880.

In attacking this decision, the retailer argues that the doctrine of res ipsa loquitur is not applicable in suits charging a retailer with negligence, and, in any event, that the customer did not present sufficient evidence to invoke the doctrine here because he nevertheless failed to meet the Leikach test.

1 2  It may well be that in the exploding bottle category, most of the reported decisions in which the customer has successfully invoked res ipsa loquitur have been claims against bottlers rather than retailers. But nothing on our prior cases, nor in those decided elsewhere, supports the notion that the doctrine is per se inapplicable to retailers. The likely explanation where such suits have been unsuccessful, as was the case in Joffre v. Canada Dry, Inc., 222 Md. 1, 158 A.2d 631 (1960), has been the customer's inability to establish a greater likelihood that injury was caused by the retailer's negligence than by some other cause. In this case, the Court of Special Appeals held that the customer had met that test in his claim against the retailer, and we agree. Without repeating the facts which we have already recited, we conclude the testimony eliminates the possibility that the explosion was caused either by thermal shock or by a manufacturing defect. On the other hand, we agree with the Court of Special Appeals that:

'. . . (the) evidence not only supports the inference that there was a substantial likelihood of impact damage resulting from mishandling by the retailer's employees during the period within which the bottles were in the retailer's control, but also the further inference that because the opportunities for mishandling by the retailer were considerably more extensive than those of the bottler, there was a greater likelihood that Mr. Seigel's injuries were caused by the negligence of the retailer than by any cause within the control of the bottler.' 20 Md.App. at 619-620, 318 A.2d at 879.

Similarly, the evidence also supports an inference that as between the customer and the retailer, the greater probability of negligence lies with the retailer. We agree, therefore, with the conclusion of the Court of Special Appeals that 'the evidence was sufficient to show a greater likelihood that (the customer's) injury was caused by the retailer's negligence than by some other cause.'

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20 Md.App. at 620, 318 A.2d at 880. Hence, the customer was entitled to have res ipsa loquitur applied and to have the jury pass on the issue of the retailer's negligence.

1(b)

We are also confronted with the argument that the *600 customer is entitled to invoke the doctrine of res ipsa loquitur against the bottler, as well as against the retailer. Thus, it is argued, 'once the plaintiff established that he was not responsible for the ccurrence, the burden would then rest upon the . . . retailer to show that after the bottle came into its possession that it was not subject to any mishandling or atmospheric or temperature changes.' Then, the burden would devolve upon the bottler to establish the rocedures employed in the bottling process. The ultimate esponsibility for determining culpability would then rest with the jury, which would decide whether reasonable care had been exercised by one or both of the defendants.

Only two states, Kansas and Pennsylvania, have adopted a rule in exploding bottle cases which shifts the burden of proof to multiple defendants once a prima facie case of negligence, based on res ipsa loquitur, has been established. Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887 (1953); Loch v. Confair, 372 Pa. 212, 93 A.2d 451 (1953). In the latter, the Pennsylvania court applied the doctrine of 'exclusive control' which, to our knowledge, his not been followed elsewhere. The essence of this concept is that the evidence of the cause of injury is not equally available to both sides, but is exclusively accessible to and within the possession of the defendants.

The rule followed in Kansas and Pennsylvania, which, in effect, permits the plaintiff to make out a prima facie case of res ipsa loquitur against two defendants by showing merely that he has been injured by the negligence of one or the other, has not gained favor with the courts or the commentators. As Dean Prosser put it, 'The reasoning in these cases as to the meaning of 'exclusive control' is not very convincing; and they are quite evidently deliberate decisions of policy, seeking to compensate the plaintiff and to require the defendants to fight out the question of responsibility among themselves.' Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 847 (1966).

In Joffre v. Canada Dry, Inc., supra, the customer also sued the retailer and the bottler. There, however, the evidence was too inadequate to invoke res ipsa loquitur against either, since the testimony permitted 'too many inferences of causes for the occurrences for which neigher the bottler nor the (retailer) would be responsible . . ..' 222 Md. at 10, 158 A.2d at 636.

Although the question now presented here was not squarely before us for decision, we said:

'We are not unmindful that several courts recently have taken the view that the explosion in a store of a bottle of carbonated beverage, without more, requires both the bottler and the retailer to go forward and exonerate themselves from responsibility. These are Loch v. Confair (Pa.), 93 A.2d 451, and Nichols v. Nold, (Kan.), 258 P.2d 317. See also Ferrell v. Royal Crown Bottling Co. of Charleston (W.Va.), 109 S.E.2d 489.

'. . . We are not prepared to hold, as the three cases last cited in effect held, that the plaintiff's ignorance of, or inability to prove, facts giving rise to a reasonable inference of negligence, can compel the defendant to supply what is needed for recovery.

'While we need not decide the question, since the plaintiff's proof was inadequate otherwise, we note, too, that the Pennsylvania and Kansas decisions seemingly invoke the doctrine of res ipsa loquitur against multiple defendants not claimed to have been guilty of joint negligence

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