Consumer Behaviour.

Linda Hagan and her sister Barbara Parker drank from a bottle of Coke that they both agreed tasted flat. Hagan then held the bottle up to a light and observed what she and Parker thought was a used condom with “oozy stringy stuff coming out of the top.” Both women were distressed that they had consumed some foreign material, and Hagan immediately became nauseated. The bottle was later delivered to Coca-Cola for testing. Concerned about what they had drunk, the women went to a health care facility the next day and were given shots. The medical personnel at the clinic told them that they should be tested for HIV. Hagan and Parker were then tested and informed that the results were negative. Six months later, both women were again tested for HIV, and the results were again negative. Hagan and Parker brought a negligence action against Coca-Cola. Coca-Cola’s beverage analyst testified at trial that he had initially thought, as Hagan and Parker had, that the object in the bottle was a condom; however, upon closer examination, he concluded that the object was a mold and that, to a “scientific certainty,” the item floating in the Coke bottle was not a condom.  There is case law that lays out the so-called impact rule in negligence claims. The rule requires that before a plaintiff may recover damages for emotional distress, she must demonstrate that the emotional stress suffered flowed from injuries sustained in an impact. Nonetheless, there are a number of exceptions to the impact rule, in which a lack of physical impact would not preclude an otherwise viable claim for emotional distress. Those exceptions include bystander cases, wrongful birth cases, negligent stillbirth cases, and bad-faith claims against insurance carriers. Other courts had found that ingestion of a contaminated product could serve in the place of the traditionally required impact. Given that Hagan and Parker’s claim is in common law, how should the court go about determining whether the impact rule applies to their case?

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