ANNAPOLIS – The Maryland Court of Special Appeals Tuesday upheld a ruling that a Glen Burnie convenience store was not responsible for moth larva found in a Hershey’s Milk Chocolate Almond Bar by an Odenton woman.
“It was not demonstrated that… [the food mart] reasonably could have prevented the existence of the larva in the chocolate bar,” the court wrote, holding that it was proper for the trial judge to rule for the store owners.
George Epps bought the candy bar at the Shell Food Mart in Glen Burnie in May 1994, and gave it to his wife, Brenda, who became violently ill after eating about half of it.
Upon inspection of the candy, the Epps found larva and silk webbing along the inside of the packaging. George Epps brought the candy bar back inside the shop to show the clerk, who according to the trial record exclaimed, “Oh, [expletive], there’s insects in it!”
Epps, after taking his wife to a hospital, notified Hershey Foods Corp., which sent an inspector to the food mart to check for infestation.
Epps contacted a lawyer the day after the incident, and filed suit against the owners of the food mart and Hershey. The case was tried in Anne Arundel Circuit Court, where Judge Bruce C. Williams dismissed the allegations against Hershey and ruled after a trial that the food mart had not been negligent.
The Epps appealed, this time naming only the food mart in their case.
The Court of Special Appeals made its ruling in an unreported opinion, meaning that it applies only to the case at hand and has no precedent value.
The panel of three judges said negligence can be proved only by showing that reasonable care was not used in inspecting the candy bars.
“The candy’s exterior was in good condition,” the court said. “There is no evidence that… [the food mart] had anything to do with preparing or packing the candy bar, or that it knew, or should have known, of the contents of the candy bar, or that it had an opportunity to inspect the contents of the candy bar.”
The court agreed with the trial judge’s reasoning. Williams had stated, “You can’t open packages before you sell them to see if there is something inside.”
No further appeal is planned. The Epps’ attorney, Stephen Rothandler of Zakroff & Associates in Bethesda, said the parties had settled out of court for an undisclosed amount since filing the appeal. Mason, Ketterman & Morgan of Baltimore, attorneys for the defendant, declined to comment under instructions from their client. -30-