Q: I was travelling and bought a soft drink at a gas station. As I drank it something bumped against my lips, and on inspection I noticed a large dead bug in the drink. I was so grossed out that I had to pull over and was sick in the ditch. I wrote the pop company and it offered a small sum of money. Should I sue?
A: You can probably sue but don’t expect the millions of dollars in a judgment that you hear being awarded by courts in the United States. Things are different down there.
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This summer a couple in New Jersey sued the manufacturer of Pop-Tarts, saying that a pastry left unattended in the toaster burst into flames, causing a fire. They claimed the pastries were dangerous and there should be warnings. Fast-food chains have been sued when people dumped hot coffee into their laps and were burned. Apparently they didn’t know that was what could happen.
However, Canadian case law in this area evolved from British law from last century. The famous 1932 case of Donoghue vs. Stevenson involved a woman who drank from a bottle of ginger beer and became sick when she found a decomposed snail inside. That case went all the way to England’s House of Lords, which decided that a manufacturer must take “reasonable care” to avoid such incidents.
So if you can show the soda pop manufacturer did not take reasonable care and did not have a regular maintenance schedule set up, you may be successful. But even if you are, how much can you collect?
In Canada, damage awards are generally compensatory in nature. That means that any award from a court is designed to put you back in the same position you’d be in if the other person hadn’t made an error. Ignoring your illness, this probably means a new bottle of that beverage, or the price of it if you’re not excited about trying to drink it again. Your getting sick may lead to some extra award, but if the effects were not long lasting, do not expect the lawsuit to be the equivalent of winning the lottery.
Product liability cases have also involved agricultural equipment. There, the test is slightly different. If a manufacturer puts out machinery that it knows is dangerous, then it is liable if there was another, less dangerous way of manufacturing the machine. At the very least the manufacturer has a duty to warn purchasers of the implement that there are dangers inherent in using it.
There is a difference between using a flawed machine with a design problem, and either improperly using a machine or using a machine that is dangerous when you knew about it. Numerous Canadian cases exist regarding manufacturers of agricultural implements and equipment.
Common sense has a role here. If, for example, you are using a baler with a design flaw and an arm gets torn off through no fault of your own, that’s probably worth some money.
But as offensive as your situation is, there is no big cash-in as a result of having an unwanted guest in your drink. You should chat with the company in a reasonable manner and chances are it will want to settle your claim quickly, quietly and without publicity. However, the manufacturer will not let itself be held up for ransom. Be reasonable, and your compensation will be as well.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
