Tuesday, June 07, 2005

Exploding toilet case has precedent in W. Va.

Just when you thought you have a unique case on your hands. As Tom Rodd points out in this comment, the exploding toilet case has precedent in West Virginia. See Tom's quote from Dowler v. Citizens' Gas & Oil Co., 71 W.Va. 417, 76 S.E. 845 (1912). The similarity is un"can"ny.

1 comment:

Tom Rodd said...

Thanks for commenting on the case I posted. I appreciate your web site.

In 1997 our Court issued a long gas explosion res ipsa loquitur case, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165. When I saw your recent post and the story in the paper, I remembered the privy case Foster had cited. Foster was in part an excursion into earlier W. Va. tort and evidence law, which is remarkably colorful and surprisingly creative and insightful.

To continue in the colorful mode, Footnote 8 in Foster says:

It has been said that where the doctrine of res ipsa loquitur creates a permissible inference of negligence (as opposed to a presumption), as has been frequently stated as the majority rule and the rule in West Virginia, it would logically follow that the inference alone would not afford a basis for a directed verdict for the plaintiff, and the question of negligence is ordinarily for the jury. Stuart M. Speiser, "Res Ipsa Loquitur" § 3.8 (1972). However, the same author states that, "At the same time, there may be an exceptional case where the inference of negligence is so strong that no reasonable man could fail to accept it, and plaintiff, will then be entitled to a directed verdict as a matter of law. For example, the case of a human toe in a plug of chewing tobacco...." Id., citing > Pillars v. R.J. Reynolds Tobacco Co., 117 Miss. 490, 500, 78 So. 365, 366 (1918) ("... if toes are found in chewing tobacco, it seems to us that someone has been very careless.")

I like this last line a lot and use it on occasion.

And here's another related colorful excerpt from WV jurisprudence, from a case which has been cited several times in later cases.:

The Tobacco Company manufactures a flat plug tobacco under the trade name or brand of "Blood Hound". Prior to the 30th of May, 1937, it made a sale of a quantity of this product to the Red Jacket Coal Corporation, which retailed the same to its customers. About the date last mentioned, the coal corporation sold a plug of this tobacco to the son of Nellie Webb, the plaintiff below, and he permitted his mother to take a chew from the plug so purchased by him. It appears from the evidence that that part of the plug from which the chew was taken contained a dead worm or moth from which extended numerous fine stickers or stingers, hard and penetrating in their nature, and each about one-eighth of an inch in length. When the plaintiff placed the chew in her mouth, these stingers, in large number, penetrated the lining and tissues of the mouth, causing great inconvenience and some pain, which continued for some time thereafter. The plaintiff made eight or nine trips to a local physician, within a few weeks following this occurrence, and an examination of her mouth by a physician for the defendant, on December 18, 1937, revealed a number of reddened areas in the roof of the mouth and left cheek which were elevated and indurated, but neither inflamed nor ulcerated. No permanent injury is alleged or proven.

2 S.E.2d 898, 121 W.Va. 115, Webb v. Brown & Williamson Tobacco Co., (W.Va. 1939)
------------ Excerpt from pages 2 S.E.2d 898-2 S.E.2d 899