Fred was grilling in his backyard tiki bar when he popped open a can of Diet Pepsi, took a big gulp and started gagging. He emptied the can down a sink but something heavy remained inside. He shook the can until something resembling "pink linguini" slid out, followed by "dark stuff." The report from the Food and Drug Administration concluded the foreign matter was a frog or a toad. Pepsi argued that the speed of their production lines and the rigor of our quality control systems made it virtually impossible for this type of thing to happen in a production environment, and that there never has been an instance when a claim of this nature has been traced back to their manufacturing facilities. If Fred suffered severe stomach upset and required medical attention as a result of his gulp, and sued the manufacturer for negligence in manufacturing the product, what theory would help him establish that a duty of care was breached?

Question

Fred was grilling in his backyard tiki bar when he popped open a can of Diet Pepsi, took a big gulp and started gagging. He emptied the can down a sink but something heavy remained inside. He shook the can until something resembling "pink linguini" slid out, followed by "dark stuff." The report from the Food and Drug Administration concluded the foreign matter was a frog or a toad. Pepsi argued that the speed of their production lines and the rigor of our quality control systems made it virtually impossible for this type of thing to happen in a production environment, and that there never has been an instance when a claim of this nature has been traced back to their manufacturing facilities. If Fred suffered severe stomach upset and required medical attention as a result of his gulp, and sued the manufacturer for negligence in manufacturing the product, what theory would help him establish that a duty of care was breached?

Quizplus · Accepted Answer

Res Ipsa Loquitur is a legal theory that allows the fact of an accident's occurrence to imply negligence when the accident is of a kind that typically does not happen without negligence, and the defendant had exclusive control over whatever caused the injury. In this case, since it's highly unlikely for a frog or toad to end up in a can of Diet Pepsi without some negligence in the manufacturing process, and Pepsi has exclusive control over that process, this theory would help Fred establish that a duty of care was breached.

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