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 dis- covery. 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 manufac- turing 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. Chicago is not Los Angeles; there were no earthquakes. Chicago is not Amityville either; no supernatural interventions are alleged. So 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 refrig- erator, 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 noth- ing happened to damage it after she brought it home. That is true—there are no metaphysical certainties—but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. 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 circum- stantial 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 acci- dent arose after Karen Godfrey bought the jar of Planters pea- nuts is very small—and on the present state of the record we are required to assume that it is—then the probability that the defect was introduced by one of the defendants is very high.

. . . The strict-liability element in modern product liabil- ity 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 for 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 "

Read Case 52-3, In Re the Estate of Charles Kuralt, on page 1149.  

Do you think that Shannon should prevail in her claim for part of Kuralt’s estate? Why or why not? How does this case illustrate the importance of having a clear estate plan when there are joint interests in a family business and property?

"IN RE THE ESTATE OF CHARLES KURALT, DECEASED

SUPREME COURT OF MONTANA 981 P.2D 771 (1999)

This case arose when Charles Kuralt died, leaving behind both a wife and a secret intimate companion, with whom he had a close personal relationship for nearly thirty years. Mr. Kuralt was hospitalized on June 18, 1997, after he became suddenly ill. He died on July 4, 1997. After his death, his wife, Petie, filed proof of authority to probate cer- tain property in Montana. Petie did not know about her hus- band’s secret intimate companion until Patricia Elizabeth Shannon (Shannon) filed a petition for ancillary probate of will, claiming a letter Kuralt wrote on June 18, 1997, and mailed to her constituted a valid holographic will with regard to the Montana property.

At issue in the case is the language in the letter dated June 18, 1997. Mr. Kuralt had taken three actions prior to June 19, 1997, to clarify what he wanted to happen to his property upon his death. On May 3, 1989, he executed a holographic will in which he bequeathed certain Montana property to Shannon. On May 4, 1997, Kuralt executed a formal will in which he devised all his property to his wife, Petie. On April 9, 1997, Mr. Kuralt deeded his interest to certain land in Montana to Shannon. He transferred a twenty-acre parcel of land with a cabin along the Big Hole River to Shannon through a sham sale; he disguised the transaction to look like a sale even though he gave Shannon the $80,000 needed to buy the parcel. Shannon and Kuralt agreed to the “sale” of an additional ninety acres along the Black Hole River. The sale was to be consummated in September 1997. Unfortunately for Shannon, Mr. Kuralt became ill and died prior to the transaction.

Here is what the June 18, 1997, letter said:

Dear Pat— Something is terribly wrong with me and they can’t figure out what. After cat-scans and a variety of car- diograms, they agree it’s not lung cancer or heart trouble or blood clot. So they’re putting me in the hospital today to concentrate on infectious diseases. I am getting worse, barely able to get out of bed, but still have high hopes for recovery . . . if only I can get a diagnosis! Curiouser and curiouser! I’ll keep you informed. I’ll have the lawyer visit the hospital to be sure you inherit the rest of the place in MT if it comes to that. I send love to you & [your youngest daughter,] Shannon. Hope things are better there! Love, C.

Shannon sought to probate this letter dated June 18, 1997, as a valid holographic codicil to Mr. Kuralt’s formal 1994 will. She did so because she wanted to make sure she got the ninety acres of Montana property she believed Mr. Kuralt wanted her to have.

A district court in Madison County, Montana, ruled that the estate should be granted a summary judgment regard- ing the June 18 letter. The district court rejected Shannon’s claim that the letter was a valid holographic codicil and Shannon appealed. In the following case, the highest court of Montana decides whether the lower court was correct in granting the estate a summary judgment. If the lower court erred, Shannon will be allowed to present evidence in a trial of Kuralt’s intent regarding who should get the Montana property.

JUSTICE W. WILLIAM LEAPHART: We disagree with the Estate’s position that Shannon’s extrinsic evidence is “immaterial” to the question of testamentary intent, and is merely “an insubstantial attempt to manufacture a material issue of fact.” Rather, we agree with Shannon that the District Court improperly resolved contested issues of material fact when it found, in support of its conclusion that the let- ter “clearly contemplates a separate testamentary instrument not yet in existence,” that: The extrinsic evidence—none of which is contested—confirms this conclusion. Petitioner herself testified during her deposition and at trial that the decedent intended to “sell”—not “will”—the Montana property to her in the fall of 1998 [sic]. While the extrin- sic evidence substantiates a close and personal relationship between Petitioner and the decedent extending over twenty- nine years, during which she and her children were appar- ently entirely housed, supported, educated, and temporarily set up in business by the decedent, those facts are not suf- ficient to create a testamentary intent which the language of the letter clearly refutes.

When drawing all reasonable inference in favor of Shannon, as the party opposed to summary judgment, we conclude that the extrinsic evidence raises a genuine issue of material fact as to whether Mr. Kuralt intended to gift, rather than sell, the remaining ninety acres of his Madison County property to Shannon. The plain language of the let- ter of June 18, 1997, indicates, as Shannon points out, that Mr. Kuralt desired that Shannon “inherit” all of his prop- erty along the Big Hole River. While other language in the letter—“I’ll have the lawyer visit the hospital . . . if it comes to that”—might suggest, as the Estate argues and as the "District Court concluded, that Mr. Kuralt was contemplating a separate testamentary instrument not yet in existence, it is far from certain that this is the result Mr. Kuralt intended by the letter.

At the very least, when reading the language of the let- ter in light of the extrinsic evidence showing the couple’s future plans to consummate the transfer of the remaining ninety acres vis-à-vis a mock “sale,” there arises a question of material fact as to whether Mr. Kuralt intended, given the state of serious illness, that the very letter of June 18, 1997, effect a posthumous disposition of his ninety acres of Madison County. Nor are the parties merely arguing

different interpretations of the facts here; we have, in this case, a fundamental disagreement as to a genuine material fact which would be better reconciled by trial.

. . . We hold that, because there is a genuine issue of material fact, the District Court erred in granting judgment as a matter of law. Accordingly, we reverse the court’s grant of summary judgment and remand, for trial, the factual ques- tion of whether, in light of the extrinsic evidence, Mr. Kuralt intended the letter of June 18, 1997, to effect a testamen- tary disposition of the ninety acres in Madison County to Shannon.

REVERSED and REMANDED."