Mary F. BEHRINGER, Plaintiff,
WILLIAM GRETZ BREWING CO., a corporation of the Commonwealth of Pennsylvania, and Park Distributing Company, a corporation of the State of Delaware, Defendants.
Arthur J. Sullivan (of Morris, James, Hitchens & Williams), Wilmington, for plaintiff.
F. Alton Tybout (of Prickett & Prickett), Wilmington, for defendant, William Gretz Brewing Co.
[53 Del. 366] Vincent A. Theisen and Victor F. Battaglia, Wilmington, for defendant, Park Distributing Co.
This is an action for personal injuries brought by Mary F. Behringer, plaintiff, against William Gretz Brewing Co. (hereinafter referred to as Gretz), a corporation of the Commonwealth of Pennsylvania, and Park Distributing Company (hereinafter referred to as Park), a corporation of the State of Delaware. Gretz is the manufacturer of a product known as Gretz beer; Park is a wholesale distributor of this and similar products in and around Wilmington; and plaintiff is an employee of Mary Harmon who owns and operates a package liquor store in Wilmington.
Mary Harmon ordered and received five cases of Gretz beer from Park. Each case contained four cardboard carriers, which in turn contained six sixteen-ounce bottles of beer. While acting in the course of her employment, plaintiff opened one of these cases and removed a carrier; whereupon the six bottles of beer fell through the bottom of the carrier striking plaintiff's left foot and ankle, and causing the injuries of which she complains.
In count I of her complaint, plaintiff alleges that Gretz negligently manufactured and packed its product, and because of such negligence, the bottles fell from the carrier, thereby causing plaintiff's injuries. Plaintiff relies on the doctrine of res ipsa loquitur in her action against Gretz, and in the event this doctrine is not applicable, she has alleged specific acts of negligence on the part of Gretz and/or Park. In count II, plaintiff has alleged that Gretz and Park represented and warranted that the carrier was of merchantable quality, i. e., proper and safe for carrying the bottles; that plaintiff relied on [53 Del. 367] this warranty; and
that plaintiff was injured because of breach of warranty by Gretz and/or Park.
Gretz filed an answer and took depositions of plaintiff. Gretz herein moves for summary judgment under Rule 56 of the Delaware Superior Court Civil Rules, Del.C.Ann. Park moves, under Rule 12(b)(6), for dismissal of the complaint for failure to state a claim upon which relief can be granted. In support of its motion, Park has filed an affidavit of its President. Therefore, Park's motion shall be treated as one for summary judgment under Rule 56. Del.Super.Ct.Civil Rules, Rule 12(b).
Summary judgment shall be granted if the pleadings, deposition and affidavit show there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law. The parties herein are in agreement as to the basic facts.
Gretz's motion will be considered first. Plaintiff has alleged two claims for relief against Gretz: (1) negligence; and (2) breach of warranty. They will be considered separately in this order.
The general rule concerning the liability of a manufacturer to third parties, who have no contractual relation with the manufacturer, for negligence in the construction or manufacture of articles, was first laid down in the jurisdiction by Judge Layton as follows:
'[A] Contractor, manufacturer or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of the articles he handles.' Gorman v. Murphy Diesel Co., 1942, 3 Terry 149, 29 A.2d 145, 147.
This rule was subsequently followed in Hartford Accident & Indemnity Co. v. Anchor Hocking Glass Corp., 1947, 5 Terry 39,55 A.2d 148, 149-150 and Hunter v. Quality Homes, Inc., [53 Del. 368] 1949, 6 Terry 100, 68 A.2d 620, 622. See also Prosser, Torts, § 84 (2d ed. 1955); 1 Stevenson, Negligence in the Atlantic States ...