Reduce Your Risk of Getting Caught in the Web of Strict Liability

By Soren Diaz

With the recent major peanut salmonella outbreak, unfortunately, we are again reminded of the dangers of foodborne illness. Food is an excellent vehicle for a myriad of pathogenic microorganisms. It’s not only nutritious for people, but also for microorganisms, which are everywhere. While some pathogens may be present in low levels in the environment, they nevertheless can easily transfer to raw foods. Further, food handling from the farm to the table, if not properly administered and controlled via state of the art food safety measures, may increase the risk of an outbreak.

Ultimately, these outbreaks spawn a multitude of costly personal injury lawsuits, which are very difficult to defend because of the concept of strict products liability. This is because strict products liability essentially relieves a plaintiff’s attorney of having to prove ordinary fault. As one prominent contaminated food plaintiffs’ attorney, noted, “[t]he concept of strict products liability, especially as it relates to food, is always a bit difficult for defendants to get their heads around…It’s not like an auto accident where both sides say the light was green. In these instances, the light is always green for me.” Put another way, strict liability imposes liability on a party regardless of the amount of care he or she may have taken to prevent injury to another. (See 62 Am. Jur.2d., Products Liability 546 (1996) Strict liability is a doctrine designed to provide injured victims with a remedy at law when the victim is not in privity with the wrongdoer and when traditional methods of recovery, such as negligence or breach of warranty, are not viable as a means of relief.

In comparing strict liability with negligence, strict liability looks at the cause of the harm itself, whereas negligence looks at the act of the wrongdoer and the court determines if the wrongdoer exercised ordinary care. Thus, strict products liability “eliminates the necessity for the injured party to prove that the manufacturer of the product which caused the harm was negligent. It focuses not on the conduct of the manufacturer but on the product itself, and holds the manufacturer liable if the product was defective”. (Brown v. Superior Court (1988) 44 Cal.3d 1049.)

The purpose of strict products liability is to place the cost of injury resulting from defective products on the producers of the products because consumers “are powerless to protect themselves” against such products. (Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal.2d 57.) Public policy proponents of strict liability argue that in an “increasingly complex and mechanized society” there exists an “economic and social need” to protect innocent consumers from the costs of dangerous and defective products.

To that end, courts have extended the scope of strict liability to non-manufacturing parties who were in the marketing chain of distribution of the defective product. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256; see also Restatement (Second) of Torts ยง 402.) The policy behind this, as explained by the California Supreme Court, is that strict liability affords a consumer the greatest possible protection and also creates an added incentive for retailers to offer safe products to the public. (See Vandermark, supra.) Therefore, regardless of the identity of a particular defendant or his position in the distribution chain, the basis of his liability remains that he has produced, manufactured, marketed or distributed a defective product. (Daly v. General Motors (1978) 20 Cal.3d 725.)

Given the broad scope of strict liability, in the context of a contaminated food outbreak, any party involved in the chain of distribution, including but not limited to farmers, growers, processors, packagers, distributors and retailers, is potentially liable. To establish a viable strict liability case against any of the defendants involved in the chain of distribution, a plaintiff’s attorney will simply have to establish that the particular food product consumed by the injured person was unsafe (contaminated) and consequently “defective”; and that the defective food product caused the injured person’s injuries. Again, for purposes of strict products liability, it is irrelevant whether a particular defendant took reasonable precautions measures to protect against an outbreak. In such a case, the only issue will be how much damages the defendant will have to pay. That is why the word “strict liability” are used.

Given the danger of the application of strict products liability in a contaminated food outbreak, the best way for farmers, processors and retailers to protect themselves is to try and avoid being involved in food contamination issues altogether. Adopting rigorous food safety measures in compliance with agricultural industry practices could reduce the likelihood of being involved in a costly food contamination lawsuit, where the only issue will be how much the defendant will have to pay as a result of being strictly liable.

This article first appeared in Volume 3-1 of L+G’s Food Safety Newsletter, in March 2009

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