Patterson v. Foster Forbes Glass Co.

674 S.W.2d 599, 1984 Mo. App. LEXIS 3915
CourtMissouri Court of Appeals
DecidedJune 19, 1984
Docket47474
StatusPublished
Cited by10 cases

This text of 674 S.W.2d 599 (Patterson v. Foster Forbes Glass Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599, 1984 Mo. App. LEXIS 3915 (Mo. Ct. App. 1984).

Opinions

SMITH, Judge.

Defendant appeals from a jury verdict and judgment against it for $50,000 in a products liability case. The cause of action was based upon the explosion of an empty baby bottle manufactured by defendant and purchased by plaintif from a retailer 12 months before the accident. Plaintiff sought relief pursuant to Sec. 402 A Restatement of Torts Second adopted as the law of this state in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo. banc 1969).

Plaintiff testified that in July 1978 she purchased eight “Even Flo” 8 ounce glass baby bottles from Dolgins in anticipation of the birth of her first child in August. They had cardboard packaging around them. Following that birth she regularly used all eight bottles for the child’s formula and for juices and other liquids. Her testimony reflects that each bottle was utilized as frequently as once a day for the eleven month period prior to the accident. In July 1979, she gave her child the bottle containing a grape drink which the child consumed. She then placed the bottle on a kitchen table. When the child wanted additional grape drink she picked the bottle up from the table and it exploded. A small portion of the upper portion of the bottle including the nipple and a section of the bottom were identifiable; the remainder of the bottle was reduced to slivers and spicules of glass scattered throughout the kitchen. Many spicules were embedded in an oil cloth tablecloth which was introduced in evidence and still contained some spicules. The explosion caused a cut on the palm of plaintiff’s hand which included severance of two tendons and the nicking of a third.

Plaintiff’s mother-in-law swept up most of the debris and threw it away. Additional cleaning the next several days disposed of the remainder of the glass. The day after the accident, plaintiff’s husband threw away the remaining “Even Flo” bottles out of fear of a recurrence and potential injury to the child.

Plaintiff’s evidence included a lengthy recitation of the use and care of the bottles after purchase by her. That evidence reflects that the bottles were never dropped, were washed solely by hand, were given to the baby only while the child was being held or in her crib, that the baby never dropped the bottles on the floor and the slats of the crib were too narrow for the bottle to fall through, and that the bottles were transported to the baby sitter’s (her mother-in-law) in an insulated bag. They were not dropped at the mother-in-law’s. The evidence was sufficient to establish that the bottle in question was never mis[602]*602handled after its purchase by plaintiff. There was no evidence of its treatment prior to purchase.

Plaintiff also testified that in addition to the “Even Flo” designation the bottles contained a logo on the bottom consisting of F’s in a circle. Defendant stated in interrogatory answers that it manufactured 8 oz. bottles for the Even Flo company in June 1979 and that it utilized as its logo on the bottom of the bottles “Script F’s inside a circle.” These answers were read to the jury. No expert testimony was presented by plaintiff and defendant presented no evidence.

Defendant raised two points on appeal i.e.: plaintiff failed to make a submissible case and the verdict was excessive. In regard to the first point defendant contends the evidence fails to establish (1) that it manufactured the bottle, (2) that the bottle was defective, and (3) that it was not mishandled after leaving defendant’s control.

Sec. 402A Restatement of Torts 2nd provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

The evidence was clearly sufficient to establish defendant as the manufacturer of the bottle which exploded. It admitted having made 8 ounce bottles for Even-Flo up to a month before plaintiff purchased the bottles and admitted that its logo on the bottles was the same as that identified by plaintiff on the bottles she bought.

Defendant strongly argues that no defect was proven. We are cited to no cases in this state which have dealt with exploding bottles under the strict liability in tort doctrine of the Restatement. There is, however, a substantial body of law concerning such bottles in the negligence field. Missouri courts have rejected the doctrine of res ipsa loquitur in such cases because the requirement of control by the defend.ant is not present. Mayback v. Falstaff Brewing Corporation, 359 Mo. 446, 222 S.W.2d 87 (1949). But the courts have recognized that liability can be found circumstantially and that the explosion of a bottle is a strong circumstance inferring negligence. Maybach v. Falstaff Brewing Corporation, supra; Beuttenmuller v. Vess Bottling Company of St. Louis, 447 S.W.2d 519 (Mo.1969) [7]; Ferrell v. Sikeston Coca-Cola Bottling Co., 320 S.W.2d 292 (Mo.App.1959); Abernathy v. Coca-Cola Bottling Company of Jackson, 370 S.W.2d 175 (Mo.App.1963). This inference arises because courts have recognized that under normal circumstances a properly manufactured bottle which has been properly filled does not explode. See Winters v. Sears, Roebuck and Co., 554 S.W.2d 565 (Mo.App.1977) [8] where a similar inference arose from the spontaneous combustion of a television set. The exploding bottle cases are distinguishable from the case at bar in two important particulars. First, they involve bottles filled with a carbonated beverage whereas the bottle here involved was empty. Secondly, they involve explosions occurring before usage of the product at a very early stage of the consumer’s contact with the bottle. Here the bottle was in the possession of the plaintiff for a year and in active use for eleven months. These two distinguishing features strengthen the inference that the explosion was the result of a defect in the product. The first because it eliminates any prospect that the explo[603]*603sion resulted from the contents of the bottle or the method used in filling it. The second will be discussed more fully later.

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Bluebook (online)
674 S.W.2d 599, 1984 Mo. App. LEXIS 3915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-foster-forbes-glass-co-moctapp-1984.