Emery v. Federated Foods, Inc.
262 Mont. 83, 863 P.2d 426, 50 State Rptr. 1454 (1993)
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Rule of Law:
A product can be legally defective and unreasonably dangerous due to the failure to warn of an injury-causing risk, even if the product is technically pure and fit. The existence of a non-obvious danger and its causal link to an injury are questions of material fact for a jury to decide, precluding summary judgment if the plaintiff presents sufficient evidence.
Facts:
- In 1987, Laura Emery lived with her two sons, Zach, age 7, and Chad, age 2.5.
- On November 3, 1987, Laura Emery purchased a bag of generic large marshmallows after scanning the label, and stored them on a high kitchen shelf.
- The following morning, after getting his mother's permission, Zach retrieved the marshmallows and gave some to his younger brother, Chad.
- Within seconds of eating the marshmallows, Chad began to choke.
- A friend, Ken Kerzman, administered the Heimlich Maneuver, but Chad continued to choke.
- Chad was rushed to the hospital where a piece of liquified marshmallow was removed from his airway, but he had already sustained severe brain injuries due to oxygen deprivation.
Procedural Posture:
- Laura Emery, on behalf of Chad Emery, filed a complaint in the Fourth Judicial District Court, Missoula County, against Federated Foods, Inc. and others, alleging products liability.
- The complaint also included a negligence claim against Mark Sorenson, M.D.
- Federated Foods moved for summary judgment on the products liability claims.
- The District Court granted summary judgment for Federated Foods.
- After Federated Foods was dismissed, the District Court granted Dr. Sorenson's motion to change venue to Flathead County.
- The District Court certified the summary judgment order as final pursuant to Rule 54(b), M.R.Civ.P.
- Emery appealed the District Court's order granting summary judgment and its order changing venue to the Supreme Court of Montana.
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Issue:
Does a genuine issue of material fact exist as to whether large marshmallows, sold without a warning of the risk of choking in young children, are a defective and unreasonably dangerous product, thereby making summary judgment for the manufacturer improper?
Opinions:
Majority - Justice Gray
Yes. A genuine issue of material fact exists as to whether large marshmallows sold without a choking warning are defective and unreasonably dangerous, making summary judgment for the manufacturer improper. The party opposing summary judgment, Emery, successfully met the burden of showing genuine issues of material fact exist. Emery presented expert affidavits suggesting that marshmallows possess unique characteristics—appearing soft and innocuous while having the potential to swell with moisture and obstruct a child's airway—which may not be obvious to a reasonable parent. Additionally, Laura Emery's affidavit stating she reads labels and would not have purchased the product had it contained a warning creates a triable issue of fact on the element of causation. The district court erred by resolving these disputed factual issues—namely, the properties of marshmallows, the foreseeability of the danger, and the cause of the injury—rather than allowing them to be decided by a fact-finder at trial.
Dissenting - Chief Justice Turnage
No. As a matter of law, marshmallows are not a product in a defective condition or unreasonably dangerous, and therefore summary judgment was appropriate. The plaintiff failed to establish the first essential element of a products liability claim. The possibility that a small child could choke on food is a matter of common knowledge to all adults. To hold that marshmallows are unreasonably dangerous without a warning would logically require nearly every food item to carry such a warning. While the incident was tragic, it does not form the basis for a products liability claim because the product itself was not defective.
Analysis:
This decision reinforces the high bar for granting summary judgment in products liability cases, particularly those involving a failure-to-warn claim. It establishes that even a seemingly innocuous, common product can be subject to a jury trial if the plaintiff provides expert evidence of a latent or non-obvious danger. The case underscores that the question of whether a risk is common knowledge or open and obvious is a question of fact for the jury, not a question of law for the judge, when credible counter-evidence is presented. This precedent makes it more difficult for manufacturers of everyday consumer goods to dismiss failure-to-warn lawsuits at an early stage.
