This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Margaret Falde,





Bush Brothers & Company, a Tennessee Corporation, et al,




Filed September 25, 2001


Amundson, Judge


Washington County District Court

File No. CX-00-3083


Adam P. Rutzick, Steven R. Rutzick and Associates, 2620 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)


Jenell M. Matthews, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN  55425-1582 (for respondents)


            Considered and decided by Anderson, Presiding Judge, Amundson, Judge, and Foley, Judge.*





* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.


U N P U B L I S H E D  O P I N I O N


Appellant sued respondent companies contending that she suffered severe chemical burns after eating a spoonful of beans manufactured by respondent.  The district court granted summary judgment because plaintiff had poured the beans down the garbage disposal and therefore made them unavailable for testing.  Appellant argues that the spoliation of the evidence does not mandate dismissal of her claim.  We reverse.


By her account, on June 15, 1999, Margaret Falde opened a can of Bush's Barbecue Baked Beans that she had purchased from a Cub Foods store, and placed a spoonful into her mouth.  Immediately, Falde began choking, vomiting, and drew labored breath.  The episode continued for 15 to 20 minutes while she attempted to wash out her mouth with water.  Falde’s tongue and mouth swelled up and she had a “terrible burning pain” in her mouth.

That evening, Falde poured the can of beans down the sink and threw away the can.  She iced her mouth but had difficulty sleeping.  In the morning, she went to Stillwater Medical Group, where she worked, and was examined by a doctor who diagnosed her with a probable chemical burn in her mouth.  The pain and swelling continued through the week following the incident and Falde realized that her medical problems were not simply going away.  She then retrieved the can out of the trash but, at that point, there was very little material left in the can.

Falde then contacted the manufacturer of the baked beans, Bush Brothers & Company (Bush Brothers).  A claims representative told her to complete and send in some forms along with the product involved in the incident.  Subsequently, the claims representative notified Falde that, due to their inability to test the product, Bush Brothers would not assume liability.

Falde filed a lawsuit against Bush Brothers and Cub Foods (collectively “defendants”), based on strict product liability for defective manufacturing, negligence, negligence per se, and breach of warranty.  In addition, she generally raised the issue of res ipsa loquitur.

Defendants moved for summary judgment, claiming that Falde’s spoliation of the evidence made it impossible to test the product and that she could not establish a prima facie case without the physical evidence.  The district court granted the motion, ruling that because the question of whether the beans were defectively manufactured could not be answered, defendants were afforded “little to no defense,”—making summary judgment appropriate.  The court also ruled that Falde could not proceed on a theory of res ipsa loquitur.  This appeal followed.


Defendants construe the district court’s order as imposing the sanction of dismissal of the case for spoliation of the evidence.[1]  In fact, the district court’s order properly found that the sanctions issue was moot.  This conclusion is proper because the lack of physical evidence here affects each party equally; neither party had access to the evidence.  The fact that a particular form of evidence no longer exists does not necessitate sanctions.  It is only when one party gains an evidentiary advantage due to its failure to preserve evidence after that party has been given the opportunity to examine it, that a spoliation sanction is justified.  See, e.g. Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995); Hoffman v. Ford Motor Co., 587 N.W.2d 66 (Minn. App. 1998); Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997) (holding that sanctions were appropriate where one party may have gained an advantage over the other by having access to evidence that is no longer available to another party), review denied (Minn. Aug. 26, 1997). 

On appeal from the grant of summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is proper if the remaining evidence is insufficient to establish a genuine issue of material fact.  See Patton, 538 N.W.2d at 118.  On appeal, we view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue of material fact exists “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  The non-moving party must do more than rest on mere averments.  Id. at 71.  A genuine issue for trial must be established by “substantial evidence,” which pertains to the legal sufficiency in establishing the existence of fact issues and not the quantity of the evidence.  Id. at 69-70.

Here, Falde has enough evidence to establish a prima facie case of liability.  To establish a prima facie case, Falde must demonstrate that the beans were defective, they were defective when they left the defendants’ control, and she was injured by them.  See Worden v. Gangelhoff, 308 Minn. 252, 254-55, 241 N.W.2d 650, 651 (1976) (characterizing proof required to recover for injuries from an unsafe product, regardless of whether the cause of action rests upon negligence, warranty, or strict liability); Heller v. Schwan’s Sales Enters., Inc., 548 N.W.2d 287, 290 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996) (listing the elements of strict liability for putting salmonella-tainted ice cream into the stream of commerce).  The evidence, taken in the light most favorable to Falde, is that she purchased a can of beans, opened it, ate a spoonful, and immediately experienced pain.  Just a few hours later, she went to the doctor who informed her that she had suffered a chemical burn inside her mouth.  This evidence is sufficient to go forward.

Defendants cited Patton and Hines for the proposition that, absent physical evidence of the defective nature of the product involved, summary judgment is proper because Falde is without direct evidence that her injury was caused by the beans.  However, with or without the beans, the testimony of Falde and her doctor sufficiently raises a fact question for the jury.

The parties also raise the issue of the applicability of the doctrine of res ipsa loquitur to the negligence claim.  Res ipsa loquitur is applicable where (1) the injury would not ordinarily occur in the absence of negligence (2) the cause of the injury was in the exclusive control of the defendants and (3) the injury was not due to plaintiff’s conduct.  Warrick v. Giron, 290 N.W.2d 166, 169 (Minn. 1980).  Defendants argue that all but the first element cannot be demonstrated by the evidence because it does not eliminate the possibility that the injury was caused by something other than the beans—for example, a contaminated spoon.  But Falde need not eliminate with certainty all possible causes of the accident.  Holkestad v. Coca-Cola Bottling Co., 288 Minn. 249, 255, 180 N.W.2d 860, 865 (1970). 

It is enough if the circumstantial evidence reasonably eliminates improper handling by others or misuse by the injured party, thus permitting the jury to reasonably infer that it is more probable than not that the [product] was defective.

Id.  Defendants argue that Holkestad and its progeny only apply to the limited subset of claims similar to “exploding bottle” cases, where the burden of proof is diminished because the evidence is destroyed by the very defect.  However, Holkestad applies here as well.  The fact that the beans were unavailable was due to the nature of the case.  In cases of allegedly tainted food, the unavailability of the food product is to be expected.  It does not matter whether Falde ate all of the beans, or that she threw away the beans after they allegedly burned her.



[1] Defendants may have been confused by the language of the district court order, which found summary judgment to be appropriate because defendants were afforded “little to no defense” because the “essential question of whether or not the beans were defectively manufactured cannot be determined.”  In other words, the district court appeared to grant summary judgment because defendants were prejudiced by the spoliation in that they could not mount a defense.  To the extent this was the basis for the summary judgment, summary judgment was inappropriately awarded.  Although defendants may indeed have more difficulty presenting a defense without evidence obtained from the can, Falde will have the equal problem of establishing a case for the same reason.  Defendants are not guaranteed any particular defense when there exists no evidence to support it.