Civil Litigation – A Tort Civil Litigation – A Tort How it Really WorksHow it Really Works

Strict liabilityStrict liability

• It is their fault – It is their fault – Period!Period!

NegligenceNegligence

• Did they act reasonably?Did they act reasonably?

Punitive damagesPunitive damages

• Did they act with Did they act with conscious disregardconscious disregardof a known safety risk?of a known safety risk?

Strict Liability for Food – Strict Liability for Food – a Bit(e) of Historya Bit(e) of History

“… “… a manufacturer of a food product under a manufacturer of a food product under modern conditions modern conditions impliedlyimpliedly warrants his warrants his goods… and that warranty is available to all who goods… and that warranty is available to all who may be damaged by reason of its use in the may be damaged by reason of its use in the legitimate channels of trade…”legitimate channels of trade…”

Mazetti v. Armour & CoMazetti v. Armour & Co., 75 Wash. 622 ., 75 Wash. 622 (1913)(1913)

Who is a Manufacturer?Who is a Manufacturer?

A “manufacturer” is A “manufacturer” is defined as a defined as a “product seller who “product seller who designs, produces, designs, produces, makes, fabricates, makes, fabricates, constructs, constructs, or remanufactures or remanufactures the relevant product the relevant product or component part of or component part of a product before its a product before its sale to a user or sale to a user or consumer….” consumer….”

RCW 7.72.010(2); see also Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)

The Legal Standard: Strict The Legal Standard: Strict LiabilityLiability

STRICT LIABILITY IS LIABILITY STRICT LIABILITY IS LIABILITY WITHOUT WITHOUT REGARD TO FAULT.REGARD TO FAULT.

The focus is on the product; not the conductThe focus is on the product; not the conduct

They are liable if:They are liable if:

• The product was The product was unsafeunsafe

• The product The product causedcaused the injury the injury

Why Strict Liability?Why Strict Liability?

Puts pressure on those Puts pressure on those (manufacturers) that (manufacturers) that most likely could correct most likely could correct the problem in the first the problem in the first placeplace

Puts the cost of Puts the cost of settlements and settlements and verdicts directly onto verdicts directly onto those (manufacturers) those (manufacturers) that profit from the that profit from the productproduct

Creates incentive not Creates incentive not to let it happen againto let it happen again

But, Litigation Can Work – But, Litigation Can Work – A History Lesson A History Lesson

Jack in the Box-1993 Odwalla - 1996Odwalla - 1996

OdwallaOdwalla

Petting ZoosPetting Zoos

Over Two Dozen Over Two Dozen reported outbreaks reported outbreaks in 10 yearsin 10 years

Thousands of Thousands of children sickened - children sickened - many with HUSmany with HUS

CDC and CDC and other Health other Health recommendations recommendations ignoredignored

Dozens of Dozens of settlements in settlements in excess of $1M.excess of $1M.

Cause - refusal to Cause - refusal to see changing nature see changing nature of bacterial threatof bacterial threat

Leafy GreensLeafy Greens

21 21 E. coliE. coli outbreaks outbreaks since 1995 with at since 1995 with at least 1,000 reported least 1,000 reported illnesses and 7 illnesses and 7 deathsdeaths

Fresh or fresh-cut Fresh or fresh-cut lettuce or spinach lettuce or spinach implicated as implicated as outbreak vehicle - 8 outbreak vehicle - 8 outbreaks traced outbreaks traced back to produce from back to produce from Salinas, CaliforniaSalinas, California

In 2006 alone, Dole In 2006 alone, Dole Spinach, Taco Bell Spinach, Taco Bell and Taco Johns - and Taco Johns - between 400 - 750 illbetween 400 - 750 ill

Leafy Greens, cont..Leafy Greens, cont..

Spinach - 25 lawsuits, Spinach - 25 lawsuits, 41 settlements thus far41 settlements thus far

Lettuce - 13 lawsuits, Lettuce - 13 lawsuits, 8 settlements thus far - 8 settlements thus far - damages will exceed damages will exceed Jack in the BoxJack in the Box

CEO testified under CEO testified under oath before Congressoath before Congress

Cause - keeping Cause - keeping animals away from animals away from growing vegetablesgrowing vegetables

Recent outbreak in Recent outbreak in HawaiiHawaii

Imports - Hepatitis AImports - Hepatitis A

Chi-Chi’s restaurant in Chi-Chi’s restaurant in Pennsylvania – Pennsylvania – 660 people sickened, 660 people sickened, 4 deaths, 100 4 deaths, 100 hospitalized, 1 liver hospitalized, 1 liver transplanttransplant

BankruptcyBankruptcy Settlements - Settlements -

$50,000,000$50,000,000 Green Onions Green Onions

imported and grow “in imported and grow “in conditions of squalor” conditions of squalor”

Important --- don’t be Important --- don’t be too focused on too focused on importsimports

Salmonella Chili’sSalmonella Chili’s

305 persons confirmed ill305 persons confirmed ill 9 hospitalized, and 179 9 hospitalized, and 179

sought medical caresought medical care Restaurant closed for Restaurant closed for

11 days11 days 28 employees tested 28 employees tested

positive for salmonellapositive for salmonella Depressed sales in region Depressed sales in region

due to bad publicitydue to bad publicity

8 months after outbreak, 8 months after outbreak, store closed for goodstore closed for good““The investigation revealed The investigation revealed environmental factors such as environmental factors such as loss of hot water, loss of all water, loss of hot water, loss of all water, the large number of ill employees the large number of ill employees at the facility, a general lack of at the facility, a general lack of hand washing and dish-machine hand washing and dish-machine sanitizer failure …contributed sanitizer failure …contributed to/exacerbated the spread….to/exacerbated the spread….

Salmonella - SheetzSalmonella - Sheetz

450 sickened450 sickened Tomatoes Tomatoes

produced by produced by Coronet - family Coronet - family business operating business operating for 75 yearsfor 75 years

BankruptcyBankruptcy Millions in Millions in

settlementssettlements Since 2004 - two Since 2004 - two

additional additional outbreaks sickening outbreaks sickening another 400another 400

Salmonella - Peter PanSalmonella - Peter Pan

Salmonella Salmonella Tennessee – 2007Tennessee – 2007

714 culture 714 culture positivepositive

Likely 40 time that Likely 40 time that numbernumber

Plant had positive Plant had positive test in 2004test in 2004

30 Class Actions, 30 Class Actions, 100 other suits100 other suits

Cause - Cause - 75,000,000 jars 75,000,000 jars produced yearly at produced yearly at Georgia PlantGeorgia Plant

What is the Problem?What is the Problem?

IndustrializatioIndustrialization of our food n of our food supply?supply?

Technological Technological Advances in Advances in Surveillance?Surveillance?

Bugs are Bugs are bigger, bigger, stronger, stronger, faster?faster?

Free Market?Free Market?

Regulation?Regulation?

Litigation?Litigation?

Criminalize?Criminalize?

How to Solve the Problem?How to Solve the Problem?

Restaurant Hospitality Restaurant Hospitality Magazine – July 2004Magazine – July 2004

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