## Facts

- Irma Virgil bought a pint vacuum-type thermos at a Kash N’ Karry grocery store; it was manufactured and labeled by Aladdin Industries.
- The label stated “Easy To Keep Clean,” disclosed the presence of glass, and stated it was not recommended for use by children, but gave no cleaning instructions and no warning that ordinary cleaning could cause danger.
- Virgil used the thermos regularly for about two to three months to carry coffee and milk and testified she did not drop, abuse, or misuse it.
- She cleaned it by soaking it overnight with a mild baking-soda and warm-water solution and then washing the interior with a bottle brush; she used no harsh cleaners and noticed no damage.
- While adding milk to hot coffee in the thermos, it imploded; the glass liner shattered inward, projecting hot liquid and glass fragments into her face and injuring her eye.
- Virgil and her husband sued the retailer and manufacturer for negligence (including failure to warn), breach of express warranty, breach of implied warranty of merchantability, strict liability, and loss of consortium.
- The trial court directed a verdict for both defendants at the close of plaintiffs’ case, concluding plaintiffs failed to prove the thermos was defective when it left defendants’ control.

## Issues

1. Whether a product’s malfunction, combined with evidence of normal use and the absence of misuse, permits an inference that the product was defective when it left the seller/manufacturer without identifying a specific defect.
2. Whether the evidence was sufficient to submit negligence, implied warranty of merchantability, and strict liability claims to the jury where the thermos imploded during foreseeable use.
3. Whether the “Easy To Keep Clean” labeling and lack of cleaning instructions or warnings supported jury questions on failure to warn and express warranty.

## Decision

- The appellate court reversed the directed verdict for both defendants and remanded for a new trial.
- The court held the plaintiffs’ evidence permitted a reasonable jury to infer a defect existing at the time the thermos left defendants’ control.
- The court ruled the case should have gone to the jury on negligence (including failure to warn), implied warranty of merchantability, strict liability, and the derivative loss of consortium claim.
- The court also held the evidence was sufficient to submit failure-to-warn and express-warranty theories to the jury based on the labeling and omission of instructions/warnings.

## Legal Principles

- In products liability, a plaintiff may prove defect and causal connection through circumstantial evidence; direct proof of a specific defect is not required when the circumstances support an inference of defect existing when the product left the defendant’s control.
- A malfunction during normal, foreseeable use, coupled with evidence tending to exclude misuse or other reasonable secondary causes, can support an inference that the product failed to perform as a reasonable consumer would expect.
- A manufacturer or seller may have a duty to provide warnings or instructions when foreseeable use (including foreseeable cleaning practices) can create a non-obvious danger; the adequacy of warnings is generally a jury question when supported by evidence.
- Marketing statements on a label can constitute an express warranty; a jury may find reliance and breach where the representation suggests ordinary use or cleaning is safe and the product fails in that context.
- A product that catastrophically fails during ordinary use may support liability under implied warranty of merchantability (fitness for ordinary purposes) and strict liability (defective condition unreasonably dangerous).
- A consortium claim is derivative and should proceed when the underlying personal injury claims are supported by sufficient evidence for a jury.

## Conclusion

The court held that the implosion of a thermos during ordinary use, together with evidence of proper use and the absence of misuse, was enough for a jury to infer a defect existing when the product left the retailer and manufacturer, and that the “Easy To Keep Clean” label and omission of cleaning instructions or warnings presented triable questions on failure to warn and warranty-based theories.


Virgil v. Kash N' Karry Serv. Corp., 484 A.2d 652 (Md. Ct. Spec. App. 1984)