Opinion
October 19, 1970
In an action to recover damages for personal injuries, (1) defendant Marlboro Industries, Ltd., appeals from an interlocutory judgment of the Supreme Court, Suffolk County, entered December 4, 1969 after trial on the issues of liability, which is in favor of plaintiff against it and defendant Estate of Virginia Delves, upon a jury verdict, and in favor of said estate on its cross complaint against Marlboro, upon the trial court's decision, and (2) said estate appeals from so much of the judgment as is in favor of plaintiff against the estate. Interlocutory judgment reversed, on the law and the facts, without costs; plaintiff's complaint as to appellant Estate of Virginia Delves, and the latter's cross complaint, dismissed; and, as between plaintiff and defendant Marlboro Industries, Ltd., action severed and new trial granted. Plaintiff was allegedly injured when a polyethylene type plastic stopper on a bottle of champagne popped up and struck his eye as soon as he removed the foil and the protective wire cage from the bottle. The champagne had been bottled by defendant Marlboro and purchased from the retailer, Virginia Delves (who died before trial). The jury found in favor of plaintiff as against both appellants on a cause of action for breach of warranty. Plaintiff's expert witness had taken measurements of the inside of the neck of the bottle and the exterior of the plastic stopper. The stopper was of a type used on about 500,000 bottles of champagne each year by Marlboro. Although there was no testimony that this stopper deviated in any way from any other stopper used by Marlboro, and it concededly fit the bottle snugly, the expert was of the opinion that its design was such that it could not resist the usual amount of pressure of a properly chilled bottle of champagne. We are of the belief that the expert's opinion was against the weight of the evidence in view of his failure to subject this or any other similar stopper to testing under pressure. In the absence of actual testing, the expert's opinion is insufficient in the face of the widespread use of such plastic stoppers in the industry. A dismissal of the complaint is required as to the retailer since the evidence established that she could not have discovered any danger by mere inspection. She was not obligated under these circumstances to make a test of the ability of the stopper to withstand normal pressure (cf. Alfieri v. Cabot Corp., 17 A.D.2d 455, affd. 13 N.Y.2d 1027). Latham, Kleinfeld, Brennan and Benjamin, JJ., concur; Hopkins, Acting P.J., dissents and votes to affirm the interlocutory judgment.