Causes of Action in Food-borne
Illness Litigation
SAR AH L. BREW
GREENE ESPEL, PLLP
200 South Sixth Street
Minneapolis, Minnesota
Greene Espel, PLLP
Basic Causes of Action
Strict Liability
Negligence
Negligence Per Se
Breach of Warranty
Consumer Fraud
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Strict Liability
Product was
defective
Defect caused
injury
Focus is on the product, not fault or lack of care
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Strict Liability
Defective Product =
“A reasonable consumer would
not expect the food product
to contain the harm-causing
ingredient.”
- RESTATEMENT THIRD, TORTS:
PRODUCT LIABILITY, § 7
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Strict Liability
Who Is Liable?
Anyone “engaged in the business of selling or
otherwise distributing” the defective food product.
-Restatement Third, Torts: Product Liability § 7
Farm
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Processor
Restaurant or
Store
Strict
Liability
Statutory
Exceptions
Protecting
Sellers
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 Non-manufacturing seller may not
be liable if



Manufacturer is solvent
Court has jurisdiction over
manufacturer
Product sold in sealed container
Washington State
A seller, other than a manufacturer, has no liability
unless:
1.
2.
3.
4.
5.
No solvent manufacturer is subject to service
High probability judgment is unenforceable
Seller is a controlled subsidiary of the manufacturer
Seller provided plans or specifications for the product
Product was sold under a trade name or brand of the
seller
- REV. CODE WASH. § 7-72.040
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Negligence
Duty to Use Reasonable Care
Design
Manufacture
Test
Market
Breach of Duty
Breach Caused Injury
Focus is on the exercise of reasonable care
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Negligence
 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 Se
 Violation of food-related regulation or laws is prima
facie evidence of negligence by supplier of whey
powder containing Salmonella.
− Blommer Chocolate Co. v. Bongards Creameries, Inc., 635 F. Supp.
911, 917 (N.D. Ill. 1985)
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Negligence 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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Breach of Warranty
Express Warranty
“. . .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
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Breach of Warranty
Implied Warranty
 Merchantibility
 Fitness 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)
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Consumer Fraud
Consumer Protection and Deceptive Trade Practices
Statutes
 Attorney Fees
 Treble Damages
 Class Actions
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