
    CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
    Jagdish Anand v. Kroger Food Stores, Inc., et al.
    October 9, 1997
    Case No. (Law) 96-200
   By Judge Jay T. Swett

Plaintiff claims damages against defendant Kroger based on injuries sustained when a soda bottle she was handling in defendant’s store exploded. Plaintiff asserts Mat since soda bottles do not routinely explode under such circumstances, Kroger must have, in some way, acted negligently. Plaintiff concedes Mat Kroger is liable, if at all, only under Me doctrine of res ipsa loquitur. Apparently, the bottle was not retained after Me incident M discovery, the plaintiff admitted she had no evidence of negligent conduct on the part of any Kroger employee Mat would explain why Me bottle exploded. Kroger denies that res ipsa is applicable and moves for summary judgment on Me grounds that plaintiff cannot demonstrate any negligence on Kroger’s part Kroger’s motion for summary judgment is granted.

Res ipsa permite an inference of negligence on Me part of a defendant in cases where direct evidence of negligence may be lacking. Easterling v. Walton, 208 Va. 214, 217 (1967). This inference has Me effect of allowing an injured plaintiff having no evidence other Man Mat an accident occurred, to survive a defense motion for directed verdict. This inference is allowed if three conditions me satisfied. These conditions are:

(1) Where Me means or instrumentality Mat caused Me injury is in Me exclusive possession and control of Me person charged with Me negligence, and
(2) This person has, or should have had, exclusive knowledge of Me way this instrumentality was used, and
(3) The injury would not have occurred if those with the management and control had used proper care.

Id.

The decisive issue here is whether toe item causing toe injury, toe soda could be considered to have been in toe exclusive possession and control of Kroger. The case law indicates that this exclusivity cannot be demonstrated. In Gilmer v. Railway Co., 202 Va. 826 (1961), an unlocked (and unlockable) truck rolled out of a car dealer’s lot, down a hill, striking and damaging plaintiffs radio tower. The Court held that since anyone, not just defendant’s employees, could have accessed and tampered with toe truck on the open lot, res ipsa was not applicable.

In Murphy v. Saunders, 202 Va. 913 (1961), a woman was injured when cans stacked in defendant’s grocery store fell on her hand. Here toe Court held that res ipsa was inapplicable since toe cans were not in the exclusive custody of defendant, but accessible to customers who could disarrange them.

In boto of these cases, toe item that caused toe injury was in a location where toe general public could access and/or tamper with it The same is true in this case. The soda bottle that "exploded” was accessible to toe general public, as would be expected of any item for sale on a supermarket shelf. It was not within the exclusive control of toe defendant, nor could it reasonably have been. Therefore, res ipsa does not apply.

Absent circumstances that would permit application of res ipsa, plaintiff must actually show some negligent act on the part of a defendant that caused toe accident in question. If toe cause of toe accident or injuries is left to conjecture, guess, or random judgment, toe plaintiff cannot recover. Sneed v. Sneed, 219 Va. 15 (1978). Here, plaintiff concedes she has no evidence as to the cause of toe exploding bottle, merely asserting that it should not have exploded. No showing has been made as to any negligence on Kroger’s part, and consequently, Kroger cannot be held liable.

This decision applies only to defendant Kroger. As to all other defendants, this action will proceed.  