Every law student who has sat through their first lecture on tort law is likely to come away remembering something about a Mrs Donoghue. She of course went to a cafe in Paisley and ordered a bottle of ginger beer to drink with an ice cream. As she poured out some of the drink, she alleged she found the remains of a decomposed snail. The rest is – as they say – history, as Lord Atkin promulgated his “neighbour principle” and the modern law of negligence was born.
A curious twist of course of the case was that no snail was found to have been present in Mrs Donoghue’s giner beer on the facts as held by the Outer House of Session, when the case was remitted for trial.
Donoghue v Stevenson was preceded by another Scottish case of Mullen v AG Barr & Co Ltd. This concerned the finding, of dead mice in bottles of ginger beer by no less than three children of the same family. In Mullen the Scottish Court of Session dismissed the plaintiffs claims on the basis that there was no legal relationship between the drinks producer and the final consumer upon which to sue, but it is unclear if the mice were actually held to have indeed been present or not.
Despite what must be considerable advances in standards of manufacturing from 1920s Scotland, it seems that “animals in drinks” cases continue to be litigated.
Earlier this year, a Mr Ball of Edwardsville, Madison County, Illinois brought a lawsuit PepsiCo in negligence after he discovered the partially decomposed body of a mouse in a tin of Mountain Dew “soda”. He alleged he was violently ill after drinking some from the tin and discovered the mouse after he poured the remaining drink in to a cup. He was reported to have sought $50,000 in damages.
Quite aside from the fact that the bases for the law of negligence are settled, like the defendant parties in Donoghue and Mullen, PepsiCo denied the presence of the offending mouse. Their reasoning did not extend to the fastidiousness of the manufacturing process, when the drink was produced or bottled however. PepsiCo argued that Mountain Dew contains such acidic chemicals that any small animal in the tin, would have been all-but dissolved or at least reduced to an unrecognisable goo.
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PepsiCo’s argument was that should a mouse be submerged in a fluid with the acidity of Mountain Dew would, after a week, “have no calcium in its bones and bony structures, the mouse’s abdominal structure will rupture, and its cranial cavity (head) is also likely to rupture”. Therefore, they argued that Mr Ball’s version of events could not possibly be correct as the mouse must have been in the tin for a period substantially in excess of a week.
An early advertising slogan for Mountain Dew in the 1960s was "Ya-Hoo Mountain Dew. It'll tickle you innards." One commentator has suggested that perhaps Pepsi ought to revive this slogan, however changing the word "tickle" to "dissolve"?