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AUGUST 29, 2003; 2:00 p.m. TO BE PUBLISHED September 19, 2003; 10:00 a.m.

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2002-CA-001482-MR

ERNEST DALE EDWARDS AND SHIRLEY EDWARDS

APPELLANTS

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DENISE CLAYTON, JUDGE ACTION NO. 99-CI-002759

HOP SIN, INC.

APPELLEE

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: BARBER, COMBS, AND KNOPF, JUDGES. In November 1998, Ernest Edwards ate raw oysters

KNOPF, JUDGE:

from the seafood bar at China Town restaurant on the Outer Loop in Louisville. By the next day he had become ill with what

proved to be septicemia, a bacterial invasion of his blood stream. The bacterium was Vibrio vulnificus, an organism

naturally occurring in sea water and commonly found in oysters and other marine filter feeders. In May 1999 Edwards and his

wife brought suit against the owner of the restaurant, Hop Sin,

Inc.1

They alleged that China Town's raw oysters were the source

of Ernest's infection and that the illness had worsened his already bad liver condition and had caused chronic swelling of his lower right leg and foot. By order entered May 16, 2002,

the Jefferson Circuit Court granted Hop Sin's motion for summary judgment. The court ruled that even if the bacterium was

present it did not render the oysters "defective" for products liability purposes and further ruled that the owner had not breached a duty to warn Ernest about the health risks posed by raw oysters. question. Summary judgment is inappropriate, of course, unless the movant demonstrates that on a dispositive aspect of the case there is no genuine issue of material fact.2 Both the trial We believe that the warning issue presents a jury

court and this Court assess such motions, not by weighing the evidence, but by reviewing the record in the light most favorable to the opposing party.3 It is well settled that one selling or distributing a defective product may be liable for harm resulting from the
1

The complaint originally sought relief from United China, Inc., but a subsequent amendment named Hop Sin, Inc., as the defendant.
2

Steelvest, Inc. v. Scansteel Service Center, Ky., 807 S.W.2d 476 (1991).
3

Id.

2

defect.4

In general, a product is defective if it "does not meet

the reasonable expectations of the ordinary consumer as to its safety. . . . [T]his amounts to saying that if the seller knew

of the condition he would be negligent in marketing the product."5 Courts have distinguished three types of product defect: (1) manufacturing defects or deviations from the product's design that create unreasonable risks of harm; (2) design defects or unreasonable risks of harm inherent in the product's design; and (3) warning defects or unreasonable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings.6 We agree with the trial court that the presence of Vibrio bacteria in raw oysters does not constitute either a manufacturing or a design defect.7 The record indicates that

4

Montgomery Elevator Company v. McCullough, Ky., 676 S.W.2d 776 (1984); Ulrich v. Kasco Abrasives Company, Ky., 532 S.W.2d 197 (1976). Restatement Third, Torts: Products Liability

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