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  1. #1
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    Mar 2013
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    Default How to Recover for Damage to Property from Leaking Food Containers

    My question involves a consumer law issue in the State of: California

    I am fond of a particular brand of soft drink. Unfortunately, it is rather expensive so I wait until major holidays when it is on sale at deeply discounted prices. I then make bulk purchases at less than half price of 12 packs of the drink in cans. I store the product in my home in a temperature controlled environment, properly stacked (cans up) for later use throughout the year. I have been doing this for years without incident until recently.

    In approximately March of this year, 24 - 12 packs began to develop pin hole leaks in the bottom of their cans. Slowly and unnoticeably over a period of time, these leaks saturated the cardboard factory containers holding the cans. In turn, this cause mold to grow on the containers and wall against which the containers were stacked. The leaking beverage seeped into the carpet and padding underneath. In addition, ink from the cartons containing the cans bled into the paint on the wall and the carpet, and cannot be removed by conventional cleaning, necessitating repainting of the wall and replacement of the carpet.

    An identical incident occurred again last month (September) involving approximately 28 – 12 packs of the soft drink in a different location, creating similar damage.

    I reported the first incident to the soft drink manufacturer when it happened, both by email (with pictures included) and using their online product failure report. No one responded. I reported the second incident by telephone and the manufacturer’s insurance adjuster is just now contacting me. One of the questions that has arisen pertains to replacement cost for the rug that I do not know how to address.

    First, the house has wall to wall carpet. You cannot replace the carpet in two rooms and make it match the rest of the house, so the entire house will need to be changed out.

    Next, when the house was manufactured, the original flooring consisted of asbestos tile which was secured with mastic containing asbestos. (I know because I previously had it tested.) Carpet was later installed over it. When I had a prior water leak and had to lift the carpet to replace padding, I learned that many of the asbestos tiles are loose. Any attempt to remove and replace the carpet will likely result in asbestos being released into the air from the mastic and broken tiles unless an expensive abatement is done first.

    Realistically, aside from replacing their defective product, what liability might the soft drink manufacturer bear with respect to painting, carpet replacement and asbestos abatement necessary to facilitate carpet replacement? And in anticipation of your first question, the damaged carpet is high end, shows no cuts or tears, but is at least 22 years old.

    Thanks.

  2. #2
    Join Date
    Mar 2013
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    And in anticipation of your first question, the damaged carpet is high end, shows no cuts or tears, but is at least 22 years old.
    Since you've anticipated the question I'm guessing you've anticipated the answer. Assuming that the manufacturer is liable in the first place (and you aren't there yet) you would be entitled to the depreciated value of the carpet. No matter how high end it is or what the condition was before the damage, 22 year old carpeted is fully depreciated in anybody's depreciation tables. Might have some residual value if serviceable of maybe 10% to 20%.

    As for replacing the whole house, I faced that question hundreds, maybe thousands of times in my career. You would be entitled to the rooms with the damaged areas, not the whole house. If you want to change out the whole house, you pay the difference.

    It's like having a fender damaged on an old car. You don't get money to paint the whole car, only the damaged area.

    Next item on the list is the asbestos issue.

    Next, when the house was manufactured, the original flooring consisted of asbestos tile which was secured with mastic containing asbestos. (I know because I previously had it tested.) Carpet was later installed over it. When I had a prior water leak and had to lift the carpet to replace padding, I learned that many of the asbestos tiles are loose.
    You chose not to have asbestos remediation when you replaced padding. You don't get to lay that on the manufacturer of the soft drinks.

    Bottom line, if the manufacturer is liable for damage it is liable only for the items that it damaged. You are not going to get $20,000 or $30,000 to remodel your house or take care of asbestos remediation that was your responsibility in the first place.

    Now on to the question of liability. What were the manufacturer's instructions regarding storage? Did you follow them? Was there a "use by" date on the product? Did you comply with it? Those are just some of the questions that an insurance adjuster might ask (I would) in trying to determine liability.

    Another part of the equation is that you had serious leak of product in March yet you did nothing to remove the second batch to a safer area knowing that there was a problem with the product. I certainly wouldn't pay you anything for the results of the second leak since you could have avoided it by moving the product to a safer area.

  3. #3
    Join Date
    Oct 2014
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    There is also this: it is foreseeable that things can happen with stored soda or any other food product over time. You evidently did not periodically check the stored soda until long after the leaks started. It wasn't until there was significant and damaging mold that you discovered the problem. This was not something that developed quickly. This likely took a number of week or months to develop to that stage. The manufacturer will argue, I think with considerable justification, that it ought not be liable for anything more than replacement of the product even if it was negligent in manufacturing it because had you simply inspected the stored product routinely you’d have caught the leak well before any carpet, wall, or mold damage occurred.

  4. #4
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    Feb 2008
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    agreed -- you took on more of the liability when you bought to store over long periods of time so that you could get the product cheaper. You chose where, when and how to store the product. I suspect most warehouses/stores store on concrete floors/metal shelving, etc. (I've never seen carpet in a grocery store) 12 packs were never meant to be stored on carpet (we store ours on a counter in our garage). You chose to stock more than you could reasonably drink within a reasonable time period like most people. There is some reasonable expectation that you will drink the product within x days of buying it. (And yes, I stock up while on sale too, but generally those are gone in about 30 days, not months)

    Plus you had a first incident and continued to store the same way even though you knew there were issues. I also agree that they are in no way responsible for the rest of your carpeted rooms or any asbestos issues. Their product/packaging didn't cause any of that. Your failure to maintain/remediate or in some way deal with that known issue prior to this (since you did know about it too) isn't on them or their product.

    In no way do I think this is "on" the manufacturer. Good luck with trying to make a case. I think you will be lucky to get enough of a settlement to replace the packs that you lost, much less paint, carpet, etc.

  5. #5
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    Thank you everyone for your input. You have given me much to think about in dealing with the beverage company's adjuster when he comes next week.

    FWIW, I have been doing this now for almost 20 years and this these were the first instances of container failure I've experienced. All leakage occurred within the "Best By" date stamped on the cans.

    As a side issue, in speaking with the beverage company I have learned quite a bit about soft drink packaging as a result of these incidents. In years past, beverages companies used to have sales where they deeply discounted the price of their soft drinks. Grocery chains would take advantage of these sales, buy warehouses full of product and sometimes you would wind up purchasing soft drinks with promotions or contests on the side of the cans that expired two years ago because they bought that much discounted product on sale three years ago. Now, can manufacturers only warranty their cans to the beverage companies for one year. After that time, the protective lining inside the can that keeps the beverage from eating away at the metal may fail and the can can leak. So, when you see the "Best By" stamp on the bottom of the can, what it really means is "drink me before this date or I may leak all over the place."

    In response to everyone's comments -

    The stack was regularly inspected on a weekly basis as product was removed for use. The problem was the location of the leaks, which appeared to be in the middle of the stack, concealing them from view until the layers of product above and around were removed for use. It appears the protective coating inside some of the cans was defective, allowing pinhole leaks to develop at the bottom of the cans. The product that leaked then damaged the exterior of other cans below and adjacent which has no protective coating, causing them to develop pinhole leaks as well. The issue cascaded down within the stack of drinks with nothing being externally visible until cases were removed and the first level of spoilage became visible.

    And for Adjuster Jack - when I spoke of previously replacing the padding underneath the carpeting I was not speaking of the entire house. It was just small (2' X 3') portions in two locations where there had been water leaks. With the asbestos issue I'm too afraid to lift the carpet & pad. Also, the second leak was not part of the same batch. It was a new order of product stored in a second location.

    Again, thanks everyone for your help. You've given me a good idea regarding what I should realistically expect.

  6. #6
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    In a typical grocery store, the pop shelves are stocked directly by the soft drink distributor. There is no store warehouse full of pop that has been sitting on the shelves for years.

    Soda cans are treated on the inside so as to prevent corrosion and protect the taste of the beverage, but they are not similarly coated on the exterior. Thus, if one soda can is somehow punctured, leaks onto the packaging and other cans, and the leak is not detected or cleaned up, it can create a cascade effect of the type you experiecned as other cans are gradually corroded from the outside. The most likely reasons why the first can might leak are external -- the mishandling of the can or a case of soda, the exposure to corrosive substances during delivery or storage, and the like.

    Given the quantity of soda that you purchase, odds are you've had the experience of opening a case to find that cans inside are damaged from the case having been dropped at some point prior to purchase, or even finding a completely empty can in a box. You may have even dropped a case a time or two, yourself.

    The manufacturer will know if it has purchased cans in recent months that have had an abnormally high failure rate. If they have not, while they may be willing to make an offer in the interest of customer relations or avoiding bad publicity, or simply to avoid a nuisance lawsuit, the settlement offer can be expected to be relatively modest. If they are aware of an issue, they are not likely to disclose it during negotiations.

    If a case like this is litigated, it would be difficult to prove how the leaks originated, and you can expect that the manufacturer and its experts will take the position that it had nothing to do with the cans or their treatment before they left the manufacturer's possession and control.

  7. #7
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    Quote Quoting L-1
    View Post


    Again, thanks everyone for your help. You've given me a good idea regarding what I should realistically expect.
    From this point forward all you can do is see what you can negotiate with the manufacture for "go away" money.

    I doubt if litigation will be cost effective considering the next to zero chance of winning.

  8. #8
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    Quote Quoting adjusterjack
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    From this point forward all you can do is see what you can negotiate with the manufacture for "go away" money.

    I doubt if litigation will be cost effective considering the next to zero chance of winning.
    It took five months but the soft drink manufacturer's insurance company finally got back to me with (much to my shock) an offer of $2,983 in go away money. Thanks everyone!

  9. #9
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    Default Re: Liability for Damage Done by Leaking Soft Drinks - Collateral Repair Issue

    Thanks for the update.

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