## Facts

- Gladys Flippo entered a women’s clothing store operated by Rosie Goforth under the name Mode O’Day Frock Shops of Hollywood in Batesville, Arkansas.
- Flippo tried on two pairs of slacks; the first was too small.
- When trying on the second pair, Flippo felt a burning sensation on her thigh, removed the slacks, and a spider fell out and was stepped on.
- Flippo developed a worsening reddened area, was hospitalized for about 30 days, and medical testimony attributed the injury to a brown recluse spider bite.
- Flippo purchased the slacks and sued the store and its operator, asserting (1) strict products liability for a defective, unreasonably dangerous product, (2) negligence, and (3) breach of implied warranty of fitness/merchantability based on the concealed spider.
- The trial court refused to instruct the jury on implied warranty and strict liability; the case went to the jury only on negligence, and the jury returned a defense verdict.
- On appeal, Flippo did not challenge the negligence verdict; she argued only that the trial court should have submitted implied warranty and strict liability theories to the jury.

## Issues

1. Whether the evidence required a jury instruction on the implied warranty of merchantability under UCC § 2-314 (as adopted in Arkansas) when a customer was bitten by a spider concealed in slacks.
2. Whether the evidence required submission of a strict tort (products) liability theory premised on an alleged defect consisting of the spider in the slacks.

## Decision

- The Arkansas Supreme Court affirmed the defense judgment.
- The court held the implied warranty of merchantability did not apply because there was no evidence the slacks were defective as goods, or that the manufacturer or retailer controlled, caused, or was responsible for the spider’s presence.
- The court held strict tort liability was not for the jury because the record did not show a product defect attributable to the defendants under strict liability principles.

## Legal Principles

- Implied warranty of merchantability does not impose liability where a buyer’s injury is caused by a foreign, external hazard associated with the goods, absent proof the goods were defective or that the seller/manufacturer had control over or caused the condition.
- Strict products liability requires evidence that the product was in a defective condition as contemplated by the doctrine; injury alone from a foreign object is insufficient without proof of a qualifying defect tied to the product or defendants’ responsibility.
- In product-injury cases pleaded in negligence, recovery requires substantial evidence of negligence and proximate causation; a defense verdict on negligence leaves no negligence-based basis for liability on appeal where not challenged.

## Conclusion

The court affirmed judgment for the retailer and store operator, holding that a spider bite sustained while trying on slacks did not warrant jury instructions on implied warranty or strict products liability because the evidence did not show the slacks were defective or that defendants controlled or caused the spider’s presence.


Flippo v. Mode O'Day Frock Shops of Hollywood, 449 S.W.2d 692 (Ark. 1970)