The Exploding Bottle Situation: Is There A Better Basis For Shopper Protection?

• Date: 01 September 1978
• Author: J. DAVID REITZEL
• Published date: 01 September 1978
• DOI: http://doi.org/10.1111/j.1744-1714.1977.tb01435.x

THE

EXPLODING BOTTLE SITUATION:

Is

THERE

A

BETTER BASIS

FOR SHOPPER

PROTECTION?

*J.

DAVID

REITZEL

In October

1970,

Nathan Seigal, age

73,

was shopping with his

wife at a Giant Food Store. As Mr. Seigal was carrying

a

six-pack

carton of Coca-Cola from a display bin to

a

shopping cart, one

or

more of the bottles exploded. Mr. Seigal lost his footing, fell to

the

floor,

and was injured. He sued both Giant Food, Inc. and

Washington Coca-Cola Bottling Company, Inc. for damages. One

basis

for

his suit was an alleged breach of an implied warranty.

The trial court directed a verdict in favor of both defendants.

One ground for the directed verdict was that the “Uniform Com-

mercial Code Section

2-314

. . .

postulated a breach of implied

warranty only upon a completed sale to Seigal.

.

.

.”’

Upon ap-

peal, the Maryland Court of Special Appeals affirmed the judg-

ment in favor of the bottler, but reversed the judgment in favor

of the retailer. The appellate court held that “the plaintiff has the

burden of showing the existence of the warranty by establishing

that

at

the time the bottles exploded there was a contract for their

sale existing between himself and the Giant.”z

*

Chairman, Dept.

of

Business Law, The American College.

I

Seigal

v.

Giant Food, Inc., 20 Md. App. 611,318 A.2d 874 (Ct. Spec. App. 1974),

afd

sub

nom.

Giant Food, Inc.

v.

Washington Coca-Cola Bottling Co., 273 Md. 592,332 A.2d

1 (1975).

Seigal

v.

Giant Food, Inc.,

20

Md. App. 611, 623, 318 A.2d 874, 882.

188

I

Vol.

15

1

American

Business

1,ari~

Journal

The appellate court concluded that Mr. Seigal had met that

burden:

We think that there is sufficient evidence to show that the

retailer's act of placing the bottles upon the shelf wit,h the

price stamped upon the six-pack in which they were con-

tained manifested an intent to offer them for sale, the

terms of the offer being that [the retailer] would pass

title to the goods when Mr. Seigal presented them at the

check-out counter and paid the stated price in cash. We

also think that the evidence is sufficient to show that Mr.

Seigal's act

of

taking physical possession of the goods with

the intent to purchase them manifested an intent to ac-

cept the offer and a promise to take them to the check-out

counter and pay for them there.J

The Maryland Court of Appeals affirmed the judgment of the

Court of Special Appeals.'

Giant

notwithstanding, shoppers injured by a defective prod-

uct before reaching the checkout counter of a self-service store

have found themselves without a reliable basis for a lawsuit

against the store.

A

suit in negligence may involve the usual

difficulties of proving which of several handlers caused t,he acci-

dent. Even if an injured shopper is assisted by some form of

res

ipsa loquitur

(as Mr. Seigal was in

Giant),

the store may escape

liability in a number of ways. For example, the store may demon-

strate that other shoppers handled the merchandise after store

employees did. Shoppers cannot rely on an implied warranty as

a basis for a suit, because many shoppers have not yet consum-

mated the requisite pre-injury sale.5 Nor can shoppers rely on the

Id

at 624, 318 A.2d at 882.

'

Giant Food, Inc. v. Washington Coca-Cola Bottling Co., 273 Md. 592, 332 A.2d 1

(1975).

See,

e.g.,

Copher v. Barbee, 361 S.W.2d 137

(Mo.

App. 1962). in which the plaintiff

was injured by the explosion of a rolling bottle

of

soft drink as she was about to pick it

UP.

The court in Nichols v. Nold, 174 Kan. 613, 621, 258

P.2d

317, 324 (1953) (dictum)

stated that

an

implied warranty does not necessarily involve a contract. In that case,

however, the plaintiff was injured after the purchase of bottles of soft drink, which

ex-

ploded as she and her mother drove home.

§§

2-314 and 2-315 of the Uniform Commercial

Code [hereinafter cited

as

LJCC] provide for implied warranties

only

upon the sale of