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Erzrumly v. Dominick's Finer Foods

OPINION FILED JUNE 24, 1977.

JOANN ERZRUMLY, A MINOR, BY ANWAR ERZRUMLY, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

DOMINICK'S FINER FOODS, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action in strict liability, alleging that two bottles manufactured by Coca-Cola and sold by Dominick's exploded injuring her. After presentation of her case she moved to amend her complaint to include a count based on the theory of res ipsa loquitur. The court denied her motion and granted defendants' motion for a directed verdict. On appeal she contends these rulings were erroneous.

At trial the following pertinent evidence was adduced.

Anwar Erzrumly

He is plaintiff's father. At about 1 p.m. on Saturday, June 7, 1969, he took his five children, wife, and father to Dominick's Food Store located at 7501 West North Avenue, River Forest, Illinois. There, he purchased several bags of groceries, including a carton of eight 16-ounce bottles of Coca-Cola. The Coca-Cola display was located along the windows by the door, on the west wall of the store. After paying for the groceries, he wheeled them to his car in a shopping cart. He put all the groceries in the trunk and proceeded to drive to his apartment located at Central Avenue near the Eisenhower expressway. It was a "four to ten mile trip, taking from 10 to 15 minutes to drive on the Expressway." He parked in front of his apartment building and removed the groceries from the trunk. The family entered the apartment by the backstairs. There were two flights, of five steps each, leading to their apartment on the second floor. Between the two flights of stairs was a landing. His four daughters preceded him up the stairs, each carrying a package and waited on the second floor landing. When he was a few steps from the top of the stairs, he heard a loud sound like an "over inflated soccerball that had blown" and then screaming by the girls. He ran up the few remaining steps and saw that his daughter Joann's leg was "slashed." He also saw broken Coke bottles on the floor, but does not remember how many. On the way to the hospital, Joann told him that "the bottle had exploded."

On cross-examination he stated that the Coke was one of the first things he put in his shopping cart. He noticed nothing unusual about the carton of Coke. He also put his groceries for the rest of the week in the same cart. It took about one hour to shop. When read a portion of his deposition in which he said that Joann carried the Coke from the store to the car, he said he did not remember this answer, and that if that was his answer, he must have misunderstood the question. Besides groceries, he also had a spare tire and a jack in his trunk.

He further stated that there is a flight of stairs leading to the first floor of his apartment building. Thus, they had to climb three flights of stairs, not two. Joann carried the Coke from the car up to the apartment.

On redirect examination he testified that nothing in the trunk could have smashed against the bottles, because he placed all the packages neatly inside the trunk. Nothing was damaged during the ride. He cannot recall if he placed any items on top of the Coke while shopping.

Dawn, Wendy, and Linda Erzrumly

They accompanied their father to Dominick's. When they arrived home from the store, they helped carry packages upstairs. Joann carried the carton of Coke. Dawn went up the stairs first, followed by Linda, Wendy, and Joann. Dawn, Wendy, and Linda waited at the apartment door for their father. When Joann was one step from the second floor landing she placed the carton of Coke on the landing. After she stood up the bottles exploded. Linda actually saw the explosion. Dawn and Wendy did not. All three girls heard the explosion. Wendy heard a loud noise like a "bicycle tire pop." Linda said it sounded like a "big balloon popping." After the explosion there was glass and Coke on the floor.

Joann Erzrumly on her own behalf

She was six years old when this incident occurred. When they arrived home from Dominick's her father took the carton of Coke out of the trunk of the car and placed it on the ground. She picked it up with her right hand and started up the back stairs. When she was one step below the landing, she placed the carton of Coke on the landing. She stood up and the bottles exploded. It made a loud sound like a "wheel or something [exploding]." She felt something ripping the skin on her left leg.

Lucille Grande

She owned the building the Erzrumlys lived in at the time of this incident. On the day in question, she heard a noise "like a tire [popping]." Then, she heard children screaming and crying. She went upstairs and found "glass all ...


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