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11/18/97 WILMA J. DANSAK v. CAMERON COCA-COLA

November 18, 1997

WILMA J. DANSAK
v.
CAMERON COCA-COLA BOTTLING COMPANY, INC., APPELLANT V. OWENS-ILLINOIS GLASS CONTAINERS, INC. AND OWENS-BROCKWAY GLASS CONTAINERS, INC.; WILMA J. DANSAK, APPELLANT V. CAMERON COCA-COLA BOTTLING COMPANY, INC. V. OWENS-ILLINOIS GLASS CONTAINERS, INC. AND OWENS-BROCKWAY GLASS CONTAINERS, INC.



Appeal from the Order Entered June 13, 1995, in the Court of Common Pleas of Allegheny County, Civil Division, No. GD93-1481. Before LOUIK, J.

Appeal from the Order Entered February 14, 1995, in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 93-01481.

Before: Beck, Ford Elliott, And Hester, JJ. Opinion BY Ford Elliott, J. Beck, J. Concured in the Result.

The opinion of the court was delivered by: Elliott

OPINION BY FORD ELLIOTT, J.:

Filed November 18, 1997

In this case, we hold that the trial court erred when it granted summary judgment to defendants based on the "spoliation of evidence" doctrine. We therefore reverse the trial court's order granting summary judgment to appellee Cameron Coca-Cola Bottling Company, Inc. ("Cameron") at No. 1372 Pittsburgh 1995. We also reverse the trial court's grant of summary judgment to appellee Owens-Brockway Glass Containers, Inc., formerly known as Owens-Illinois Glass Containers, Inc. ("Owens") at No. 1285 Pittsburgh 1995. *fn1

The facts of the case are drawn from appellant Wilma Dansak's deposition, taken on June 21, 1994. She stated that she was injured on December 3, 1991, while working the midnight-to-8:00 a.m. shift at a CoGo's convenience store in White Oak, Pennsylvania. The injury arose as Dansak was removing glass bottles of soda from their plastic "six-pack" containers and placing them in the store's coolers. The six-packs are delivered to CoGo's in cardboard boxes. Dansak was the only employee responsible for filling the cooler with soda bottles, and was the only employee in the store at the time.

On the night in question, the boxes were stacked four-high from the floor in the storage area behind the cooler. As was her custom, Dansak removed the six-pack from the topmost box, held it in her left arm, and removed a bottle from the pack with her right hand, using a twisting motion. In doing so, she cut her right hand on a broken adjacent bottle, which remained anchored within the six-pack's plastic casing. According to Dansak, the entire bottom part of the broken bottle was missing.

Upon noticing that she had been cut, she put down the six-pack and ran to call for medical assistance. She never went back to the cooler to examine the six-pack or the box. However, she states that she would have noticed (but did not notice) the presence of broken glass or spilled liquid in the box. She tended to her hand while waiting for assistance to arrive; she was then immediately hospitalized. She claims that the injury has caused, inter alia, nerve damage (reflex sympathetic dystrophy) in her hand.

Dansak later learned that her store manager threw away the six-pack, including the broken bottle. No party to the litigation was responsible for the bottle's disappearance, and no party ever had the opportunity to inspect the product before it was destroyed. While Dansak has not consistently identified the exact type of soda contained in the six-pack, *fn2 she has never wavered in identifying the six-pack as coming from a box containing Cameron's products.

On January 25, 1993, Dansak commenced an action against Cameron alleging strict products liability and breach of warranty. Cameron later filed a complaint to join Owens, its glass bottle supplier, as an additional defendant.

Cameron filed a motion for summary judgment, alleging that Dansak's claim was barred because (1) she could not produce to the defense the product that injured her, and (2) she could not proceed on a "malfunction" theory of products liability because she could not establish a defect in the product or eliminate reasonable secondary causes for the product's malfunction. On February 14, 1995, without issuing a supporting opinion, the trial court granted summary judgment to Cameron. Owens then filed a motion for summary judgment on grounds identical to Cameron's. The trial court, without issuing a supporting opinion, granted this unopposed motion on June 13, 1995. After Dansak appealed to this court, the trial court issued a memorandum in support of its judgment in favor of Cameron *fn3 on the ground that Cameron was "greatly prejudiced" by Dansak's failure to preserve the product for inspection.

Our standards on appeal for ruling on a grant of summary judgment are well known.

The trial court must accept as true all well-pleaded facts in the non-moving party's pleadings, and give to him or to her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa. Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa. Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court's Conclusion that no genuine issue of material fact exists and that the moving party is entitled [to] judgment as a matter of law. Pa. R.C.P. No. 1035, 42 Pa. C.S.A.; Hatter v. Landsberg, 386 Pa. Super. 438, 440, 563 A.2d 146, 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa. Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Troy v. Kampgrounds of America, Inc., 399 Pa. Super. 41, , 581 A.2d 665, 667 (1990), citing O'Neill v. Checker Motors, 389 Pa. Super. 430, 434-35, 567 A.2d 680, 682 (1989).

The primary question on appeal is whether the trial court erred as a matter of law when it granted summary judgment based on ...


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