SARAH L. BREW

GREENE ESPEL, PLLP200 South Sixth Street

Minneapolis, Minnesota

Causes of Action in Food-borne Causes of Action in Food-borne Illness LitigationIllness Litigation

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Basic Causes of ActionBasic Causes of Action

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Strict LiabilityStrict Liability

Focus is on the Focus is on the productproduct, not fault or lack of care, not fault or lack of care

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Strict LiabilityStrict Liability

Defective Product Defective Product = =

““A reasonable consumer would A reasonable consumer would not expect the food product not expect the food product to contain the harm-causing to contain the harm-causing

ingredient.”ingredient.”

- RESTATEMENT THIRD, TORTS: PRODUCT LIABILITY, § 7

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Who Is Liable?Who Is Liable?

Anyone “engaged in the business of selling or Anyone “engaged in the business of selling or otherwise distributing” the defective food product.otherwise distributing” the defective food product.

-Restatement Third, Torts: Product Liability § 7

Strict LiabilityStrict Liability

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Strict Strict LiabilityLiability

Statutory Exceptions Protecting Sellers

Non-manufacturing seller may not be liable if Manufacturer is solvent Court has jurisdiction over

manufacturer Product sold in sealed container

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Washington StateWashington State

A seller, other than a manufacturer, has no liability unless:

1. No solvent manufacturer is subject to service

2. High probability judgment is unenforceable

3. Seller is a controlled subsidiary of the manufacturer

4. Seller provided plans or specifications for the product

5. Product was sold under a trade name or brand of the seller

- REV. CODE WASH. § 7-72.040

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NegligenceNegligence

Focus is on the Focus is on the exercise of reasonable careexercise of reasonable careGreene Espel, PLLP

NegligenceNegligence

Reasonable Care = Care exercised by a reasonable manufacturer/seller under similar circumstances Industry Standards State of the Art Compliance with Governmental Regulations Followed GAP, GMP, HACCP

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Negligence Per SeNegligence Per Se

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Negligence Per SeNegligence Per Se

FDCA Adulterated = “contains any poisonous or deleterious substance

which may render it injurious to health.” 21 U.S.C. § 342(a)(1).

Federal Regulations FDA USDA

State Food Act REV. CODE WASH. § 69.04

Local Department of Health

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Express WarrantyExpress Warranty

Breach of WarrantyBreach of Warranty

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“. . .This delicious blend of baby leaf greens contains a varied mix of hand selected premium grade product that is already washed and ready to eat. . . .Available in ready to eat showbowls or loose in cartons for catering.” [Emphasis added.]www.sunsprout.co.nz

Implied WarrantyImplied Warranty

MerchantibilityFitness for a particular

purpose

“A food processor impliedly warrants under REV. CODE WASH. §69A.2-314 that food products it sells are of merchantable quality and fit for the ordinary purpose for which they are intended.”- Jeffries v. Clark’s Restaurant Enterprises,

Inc., 580 P.2d 1103 (Wash. App. 1978)

Breach of WarrantyBreach of Warranty

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Consumer FraudConsumer Fraud

Consumer Protection and Deceptive Trade Practices Statutes

Attorney Fees

Treble Damages

Class Actions

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