IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX



PAMELA CHELCHER, Individually and on

behalf of her minor son, ANDY CHELCHER



Plaintiff,



Vv.



COCA-COLA BOTTLING CO. OF PUERTO RICO

INC. , FLORIDA COCA-COLA BOTTLING CO.,



and UNITED CORP., d/b/a PLAZA EXTRA,



Defendant.



MICHAEL A. JOSEPH, ESQUIRE

No. 102 Richmond

Christiansted, St. Croix



U.S. Virgin Islands 00820

(809) 773-9650



(Attorney for the Plaintiffs)



JAMES L. HYMES, III, ESQUIRE

No. 10 Norre Gade



P.O. Box 990



Charlotte Amalie, St. Thomas

U.S. Virgin Islands 00801

(809) 776-3470



Nae a Ne Se Se Ne a ae ae ee et ee”



(Attorney for Defendant Florida Coca-Cola Bottling Co.)



ROLAND B. SCOTT, JR., ESQUIRE

No. 55-56 Company Street

Christiansted, St. Croix



U.S. Virgin Islands 00820

(809) 773-6907



CIVIL NO: 1277/1986



ACTION FOR DAMAGES



(Attorney for the Defendant United Corp. d/b/a Plaga Extra)



PETERSEN, Judge



MEMORANDUM OPINION



August /<@', 1987



FACTS



On or about October 26,



1986,



plaintiffs



Pamela



Chelcher and her minor son Andy Chelcher purchased a can of the

C c



CHELCHER v. COCA COLA BOTTLING co. OF PUERTO RICO, INC.

CIVIL NO. 1277/1986



ACTION FOR DAMAGES



Page 2



beverage Coca-Cola from defendant manufacturer Coca-Cola

Bottling Company of Puerto Rico and sold by defendant Florida

Coca-Cola Bottling Company. Defendant Florida Coca-Cola

Bottling Company is a dealer of beverages. (See Para. 5 of

Plaintiff's Complaint and Para. 5 of Defendant's Answer. )

Alleging that the beverage was "not fit and wholesome for human

consumption," plaintiffs filed an action for damages resulting



from their injuries.



DISCUSSION



Federal Rules of Civil Procedure 56(b) permits any

party to a civil action to move for a summary judgment when he

believes there is no genuine issue of material fact and that he

is thus entitled to prevail as a matter of law. Anderson v.



Liberty Lobby, Inc., 471 U.S. 1134 (1986), Scott v. Plante, 532



F.2d 939 (3d Cir. 1976), Carino v. Golden, 19 V.I. 371 (Terr.



Ct., St. Croix 1983), Walker v. Skyclimber Inc., 20 V.I. 293



(D.V.I. 1983).



Defendant Florida Coca-Cola Bottling Company, a

dealer, alleges that it can not be held liable for plaintiff's

injuries and thus is entitled to judgment as a matter of law.

In support of this claim, defendant Florida Coca-Cola Bottling

Company notes that it (1) did not manufacture the product and



(2) it has no ownership interests, similarity of officers or

rn

‘aida



CHELCHER v. COCA COLA BOTTLING CO. OF PUERTO RICO, INC.

CIVIL NO. 1277/1986



ACTION FOR DAMAGES -

Page 3



directors with fellow defendant Coca-Cola Bottling Company of

Puerto Rico. In essence, defendant Florida Coca-Cola Bottling

Company is arguing that only manufacturers and their corporate

affiliates can be held liable in the present case. But,

defendant Florida Coca-Cola Bottling Company's argument has no

basis in current product liability law. Under the principle of

strict liability, both manufacturers and sellers are liable for

products that they have placed in the stream of commerce. Thus

sellers are liable, if among others things, the seller is

engaged in the business of selling such products. 2 Restatement



Torts 2nd Section 402A Conti v. Ford Motor Co., 743 F.2d 193



(3rd Cir. 1984) Dougherty v. Hoovier Chemical Corp., 340 F.2d



174 (3rd Cir. 1976).



To escape the tight grasp of product liability law,

defendant Florida Coca-Cola Bottling Company must prove that it

is only an occasional seller of the product and thus unable to

effectively spread the cost of the defective product through an

increase in prices or insurance. See 2 Restatement Torts,



Supra, Comment F., McKenna v. Art Pearl Worvis, Inc, 310 A.2d



677 (PA Super, 1973), Balido v. Improved Machinery Inc., 105



Cal. Rptr. 890 (Ct. App. 1972). As defendant has not presented

any evidence casting itself in this category, the court can not

grant this protective shield.



This Court has not been made aware of any product

iin

eo



CHELCHER v. COCA COLA BOTTLING co. OF PUERTO RICO, INC.

CIVIL NO. 1277/1986



ACTION FOR DAMAGES



Page 4



liability law that would effectively exclude defendant Florida

Coco-Cola Bottling Company from the present action for damages.

The defendant's motion for summary judgment attempts

to distinguish itself as a non-manufacturing entity separate and

distinct from fellow defendant Coca-Cola Bottling Company of

Puerto Rico. However, as manufacturers and dealers are both

liable for injuries, defendant Florida Coca-Cola Bottling

Company's distinctions are irrelevant ones. Accordingly, the



motion for summary judgment is denied.



ae ae

EILEEN R. PETERSEN

JUDGE