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Lynch v. Galler Seven-Up Pre-Mix Corp.

Decided: August 2, 1977.

GEORGE LYNCH AND LORETTA LYNCH, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
GALLER SEVEN-UP PRE-MIX CORP., 7-UP BOTTLING CO. OF ESSEX, INC., THE CORNELIUS COMPANY AND KEROTEST MANUFACTURING CORP., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None.

Per Curiam

Plaintiff George Lynch was injured on June 13, 1977, by an exploding pressurized soda canister while he was tending bar at the Moose Hall in Lodi, New Jersey. Suit was commenced against Galler Seven-Up Pre-Mix Corp., the distributor of the soda canister, 7-Up Bottling Co. of Essex, Inc., The Cornelius Company, the manufacturer of the canisters and Kerotest Manufacturing Corp., the manufacturer of the gauges on the pressurized canisters. The complaint by Lynch and his wife alleged generally that one or all of these defendants had been negligent in manufacturing, designing, supplying and utilizing the pre-mix soda canister, and as a result of such negligence the canister exploded injuring plaintiff. There was no pretrial conference or order.

The matter was tried with a jury. During plaintiffs' case, motions for dismissal by defendants Kerotest and 7-Up Bottling of Essex, Inc. were granted. At the conclusion of the taking of evidence, the case was submitted to the jury which returned a verdict in favor of the remaining defendants. Thereafter plaintiffs brought a motion for a new trial which was denied. The Appellate Division in an unpublished opinion affirmed the jury verdict. This Court granted certification. 70 N.J. 519 (1976).

Plaintiffs' primary contention is that by failing to grant their motion to amend their theory of negligence to conform with the proofs adduced at trial, a "trial on the merits" was foreclosed. We disagree.

Plaintiffs' expert testified that the explosion was caused because an improper size cap cover was used on the soda canister. This conclusion was based upon his measurements of the canister involved in the explosion, which were compared with several other canisters he found on the premises. As a result, he believed that defendant Cornelius Company manufactured two types of canisters which had different

size openings and required different size caps. He opined that if a smaller size cap was used in the larger size opening an explosion, such as occurred in this case, was possible and that it was poor engineering design to make products which looked so similar and did not have any identification system to prevent a mismatch of the smaller caps with canisters having the larger openings. The expert concluded that Cornelius Company should have color-coded the caps or used other means to differentiate the caps and that Galler Seven-Up was negligent in placing the wrong size cap on the canister they filled and distributed. This testimony was consistent with the expert's report that plaintiff's had supplied in answers to interrogatories.

On cross-examination the plaintiffs' expert admitted that he never checked with Cornelius Company to verify his conclusion nor tried to obtain the actual specifications of the manufactured canisters. He also admitted that if it could be shown that in fact only one size of canister was manufactured and the caps were uniform and could be used interchangeably, he would no longer conclude that the explosion was caused by use of a mismatched cap.

The defendants utilized various witnesses to prove that there was no difference in size between the models of canisters and all the caps were uniform and used interchangeably on the canisters. According to the defense expert, the accident could not have occurred as hypothesized by the plaintiffs. In response to a question, he stated that the observable difference in the size of the opening of the canister actually involved in the explosion could have been caused by someone twisting or banging the cap.

Apparently plaintiffs' counsel realized that this theory of liability had been effectively weakened or rebutted. Consequently, he sought to explore a new explanation for the explosion during cross-examination of defendants' expert. When objections to such questions were sustained, counsel then argued out of the presence of the jury that because the cap which exploded bulged outward while all normal caps

were flat, the jury could infer that the cap had become distorted from use over a long period of time. It was suggested that the constant pressure under which the canisters were charged over a period of time caused the metal to weaken and the cap to bulge, eventually resulting in the explosion. This theory was offered despite plaintiffs' own expert having previously testified that the changed shape of the cap was not caused by constant pressure over a long period of time. The court refused to allow plaintiffs to explore this theory on cross-examination of defendants' expert. Plaintiffs then moved to amend the original "contention" of their expert to conform to the evidence of the case. This motion was denied.

Later, out of the presence of the jury, plaintiffs' counsel renewed his proffer through the presentation of testimony of his expert. The expert stated at this time, in total variance from his submitted report and prior testimony, that the distortions of the covers "would have to be caused by pressures being exerted upon the metal as a result of flexure due to uneven support or unevenly applied support as a result of the gasket not supporting the flange all the way around", and that "internal pressure distortions would cause the opening to become larger in the tank and would cause the cover dimension to be smaller on the outside dimensions." This distortion "caused the size changes [and] was a factor" allowing the gasket to move, "thus voiding the support of the cover ...


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