Sunday, January 11, 2009

Poppa Smith and the Champagne Bottle

Poppa Smith and the Champagne Bottle

Mrs. Smith bought a bottle of expensive French champagne from the liquor store to celebrate her father’s birthday. Because she wanted a big “pop” for the occasion, she shook the bottle a few times before giving it to her father. When her father opened it the cork released prematurely, injuring his eye. It turned out that the cork was rotten.

Can he sue?

This is quite similar to the integrated glass in the bread case described in our text. One must decide if this a case of product liability claims for contractual breach or negligence liability. He can sue, anyone can sue. The question is, "Can he win?" Being corked in the eye with a champagne bottle may be an expected potential risk and if the product labelling includes a warning not to point it towards anyone's face there may be cause for this claim to be thrown out of court under terms of appropriate labelling or warnings.

Who is liable: the French wine producer, the liquor store, Mrs. Smith, or the wine importer?

While a rotten cork could prove spurious to the biblious, especially since many bottling associations are transitioning to synthetics and natural rubber stoppers or bungs, Mrs. Smith's "poppa" may seek compensation for pain and suffering, out of pocket medical expenses and possible lost wages or lack of enjoyment celebrating his birthday with a champagne induced shiner which might have led to whining and whinging.

The liquor store probably purchased the champagne from a distributor who purchased it from the French bottler. At what point was the cork rotten? At the factory, at the distributor or at the liquor store? Were dates of expiry exceeded or were handling, shipping or storage conditions at fault? Perhaps even a shipping company or product handler may be found liable for damages.

In the case of the liquor store "Poppa Smith" may find evidence to sue based on breach of contract, an implied condition under the Sale of Goods Act that the champagne was fit for human consumption. As the stopper was found to be rotten it was not fit for consumption.

The liquor store might then seek to sue its import distributor if fault may be found in the shipping or handling conditions of the product. Then in turn the producer in France may be painfully drawn into a liability litigation if the product was found to be faulty at source of production by the shipper or distributor. An expensive little chain of fault finding and finger pointing could occur.

If this is the case then "Poppa Smith" may also sue the French manufacturer for the tort of negligence if it is found negligent by any of the other parties.

Are there any potential advantages to suing under contract law (if such a suit is possible) as opposed to negligence?

Suing under contract law might be easier to prove in court as the damages may include extra benefits to the plaintiff. There might also be a rich source of prior cases for examining precedence for his claim including the handling of rotten bungs.

When do you think one proceeds using a negligence theory of liability?

One might proceed under negligence theory when no contract directly linking the consumer to the producer is evident yet all litigation has proven negligence of liability especially if the retailer or distributor have cleared their possible liabilities by directly proving producer defect, design defect, or failure to warn consumers under terms of either res ipsa loquitor ("the terms are clear") or delictual principles (extra-contractual liabilities).

However if those labels were affixed in accordance with bilingual language laws (as in Canada) even if the product was found faulty it would be difficult to prove liability in the case of a champagne bottle gone typically awry. What if "Poppa Smith" or his daughter were trying to fleece the producers by secretly procuring a faulty stopper post-popping and claiming foul? Even the act of shaking the bottle could be found contributory negligence regardless of the rotten stopper. Especially if warning labels include, "Do Not Shake."

For example, new warning labels on plain old wine bottles regarding alcohol and pregnant women were causing debate last year regarding reasonable conditions of res ipsa loquitor in "New Health Warning on Wine Labels Has Many French Seeing Red" (Washington Post, 2007)

Another article from the British Journal of Opthamology in 2004 concluded that champagne warning labels have indeed reduced risk of eye damages and might over-ride or diminish any claims made on the integrity of the cork notwithstanding.

"Serious eye injuries caused by bottles containing carbonated drinks" (Kuhn,Mester,Morris & Dalma, 2004)

If appropriate warnings were made regardless of cork condition "Poppa Smith" may end up with outstanding legal costs and a case thrown out of court along with his shiner.

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