What theory of liability did Justice Posner use in finding the defendant liable? What are the judge's reasons for reversing the decisions of the lower court? Do you agree with the decision? Why or why not? Feel free to research and discuss other product liability cases of interest.

WELGE v. PLANTERS LIFESAVERS CO.COURT OF APPEALS FOR THE SEVENTH CIRCUIT 17 F.3D 209 (7TH CIR. 1994)

Richard Welge, who boarded with Karen Godfrey, liked peanuts on his ice cream sundaes. Godfrey bought a 24-ounce vacuum-sealed plastic-capped jar of Planters peanuts for Welge at K-Mart. To obtain a $2 rebate, Godfrey needed proof of her purchase from the jar of peanuts. She used an Exacto knife to remove the part of the label that contained the bar code and placed the jar on top of the refrigerator for Welge. A week later, Welge removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator. A week after that, he took down the jar, removed the plastic cap, spilled some peanuts into his left hand to put on his sundae, and replaced the cap with his right hand. As he pushed the cap down on the open jar, the jar shattered. His hand was severely cut, and became permanently impaired.

Welge filed product liability actions against K-Mart, the seller of the product; Planters, the manufacturer of the peanuts; and Brockway, the manufacturer of the glass jar. Defendants filed a motion for summary judgment after discovery. The district judge granted the motion on the ground that the plaintiff had failed to exclude possible causes of the accident other than a defect introduced during the manufacturing process. The plaintiff appealed.

JUSTICE POSNER

No doubt there are men strong enough to shatter a thick glass jar with one blow. But Welge's testimony stands uncontradicted that he used no more than the normal force that one exerts in snapping a plastic lid onto a jar. So the jar must have been defective. No expert testimony and no fancy doctrine are required for such a conclusion. A nondefective jar does not shatter when normal force is used to clamp its plastic lid on. The question is when the defect was introduced. It could have been at any time from the manufacture of the glass jar by Brockway (for no one suggests that the defect might have been caused by something in the raw materials out of which the jar was made) to moments before the accident. But testimony by Welge and Godfrey . . . excludes all reasonable possibility that the defect was introduced into the jar after Godfrey plucked it from a shelf in the K-Mart store. From the shelf she put it in her shopping cart. The checker at the check out counter scanned the bar code without banging the jar. She then placed the jar in a plastic bag. Godfrey carried the bag to her car and put it on the floor. She drove directly home, without incident. After the bar code portion of the label was removed, the jar sat on top of the refrigerator except for the two times Welge removed it to take peanuts out of it. Throughout this process it was not, so far as anyone knows, jostled, dropped, bumped, or otherwise subjected to stress beyond what is to be expected in the ordinary use of the product. The defect must have been introduced earlier, when the jar was in the hands of the defendants.

. . . [I]t is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. The plaintiff in a product liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants. The doctrine of res ipsa loquitur teaches that an accident that is unlikely to occur, unless the defendant was negligent, is itself circumstantial evidence that the defendant was negligent. The doctrine is not strictly applicable to a product liability case because, unlike an ordinary accident case, the defendant in a products case has parted with possession and control of the harmful object before the accident occurs. . . . But the doctrine merely instantiates the broader principle, which is as applicable to a products case as to any other tort case, that an accident can itself be evidence of liability. . . . If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold. The second condition (as well as the first) has been established here, at least to a probability sufficient to defeat a motion for summary judgment. Normal people do not lock up their jars and cans lest something happens to damage these containers while no one is looking. The probability of such damage is too remote. It is not only too remote to make a rational person take measures to prevent it; it is too remote to defeat a product liability suit should a container prove dangerously defective.

. . . [I]f the probability that the defect which caused the accident arose after Karen Godfrey bought the jar of Planters peanuts is very smalland on the present state of the record we are required to assume that it isthen the probability that the defect was introduced by one of the defendants is very high.

. . . The strict-liability element in modern product liability law comes precisely from the fact that a seller, subject to that law, is liable for defects in his product even if those defects were introduced, without the slightest fault of his own Page 258for failing to discover them, at some anterior stage of production. . . . So the fact that K-Mart sold a defective jar of peanuts to Karen Godfrey would be conclusive of K-Mart's liability, and since it is a large and solvent firm there would be no need for the plaintiff to look further for a tortfeasor.

. . . Here we know to a virtual certainty (always assuming that the plaintiff's evidence is believed, which is a matter for the jury) that the accident was not due to mishandling after purchase, but to a defect that had been introduced earlier.