LIABILITY FOR FOOD CONTAMINATION

LIABILITY FOR FOOD CONTAMINATION

Although strict products liability law applies to food products, there are several defenses and exceptions available to defendants facing strict liability claims. We will provide an overview of this area of law as we address the issues related to food contamination.
In California, with limited exceptions and defenses, all entities that are involved as an integral part of the overall producing and marketing process or enterprise, inclusive of food products, are strictly liable to the consumer for injuries caused by a defective or unsafe product pursuant to California’s “stream of commerce” products liability doctrine. For example, in the context of food products, stream of commerce would include all entities that are involved in producing the product, growing the product in the field, and final sale of the product to the consumer. Such liability insures that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.
The purpose of strict liability is to ensure that the costs of injuries resulting from defective products are borne by the overall producing and marketing enterprise. Such strict liability leads to enhanced product safety since retailers are in a position to exert pressure on manufacturers. Imposing strict liability under these circumstances is an expression of policy that once “an entity is instrumental in placing a defective product . . . into the stream of commerce, then liability attach without regard to conduct (fault)”. Kasel v. Remington Arms Co., Inc., 24 Cal.App.3d 711, 732 (1972).
In California, strict liability jurisprudence based on a defect applies to food products.  As mentioned above, however, in some cases limited exceptions and defenses might apply, including, for example, the use of the product by the consumer in an improper, unanticipated manner. Additionally, a manufacturer may avoid liability after providing  an adequate warning or, in some situations, an entity that merely takes an already-made item or component or part of an item “off the shelf” and adds that component or item to the product.
Thus, with the strict products liability doctrine, these cases often involve issues relating to: (1) whether the consumer used the product as intended and not in violation of warnings (and whether adequate, noticeable warnings were provided); (2) possible percentage of fault by the consumer; (3) the extent of the injuries suffered by the consumer; and (4) although the consumer is entitled to compensation for injuries suffered, the defendants will litigate contribution between themselves in accord with their percentages of fault.
The injured consumer tort (i.e., personal injury) victim is entitled to recover economic and non-economic damages. Economic damages typically include past and future medical expenses, out of pocket costs and lost wages. Non-economic damages include pain and suffering and emotional distress.
An injured victim is entitled to recover the reasonable value of medical care and services, both past and future, that are reasonably required and attributable to the injury. These expenses generally include the cost of treatment by physicians, hospital care, nursing care, physical therapy, medicine and medical supplies.
Plaintiff may also recover additional out-of-pocket damages to compensate him or her for loss incurred up to time of trial and losses that are reasonably certain to occur in the future. In personal injury actions the plaintiff may recover for necessary and reasonable expenditures attributable to the injury.  This can include damages for both lost earnings and for the impairment of the ability or capacity to earn in the future that are the proximate result of injury by the wrongful conduct and defective product.
The general rule of damages in tort for personal injury is that the injured victim may recover for all detriment caused whether it could have been anticipated or not, including money damages as reasonable compensation for pain and suffering and emotional distress. This element of damages includes compensation for physical pain and mental components that can be characterized as emotional distress such as fright, grief, anxiety, shock, humiliation, indignity, worry, nervousness, embarrassment and/or terror.
In some cases, depending on the facts and circumstances, the wife or husband of an injured person has a cause of action to recover damages for loss of consortium resulting from the injury to the injured spouse, if the injury occurred during marriage.  The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations and conjugal society, solace and more.
The discussion above pertains to civil liability for money damages at the business organization or entity level.  In an important developing area, the courts and regulatory authorities are still struggling with and deciding the possible extent of entity officer personal criminal liability and more specifically the sentencing of jail time in products liability including food contamination cases.  This issue is all the more uncertain in situations where the officer had no actual personal knowledge of or involvement in the contamination.  We will turn to these questions in a future issue of this newsletter.
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David Tate
dtate@rroyselaw.com

David is an experienced civil and probate court litigation attorney. David’s civil litigation cases primarily involve business, real estate, commercial, D&O, environmental, products liability, IP, employment, insurance coverage and bad faith, professional liability (trustee, real estate broker, insurance broker, accountant, D&O), and personal injury litigation. Read My Full Bio

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