Updated: Jul 10, 2020
By Faiza Hasan
Everyone in the chain of distribution of food products in Maryland (producers, manufacturers, sellers, and buyers) should understand the “sealed container defense.” Generally, liability for a defective or unsafe food product is joint and several liability, which means it can attach to any person in the chain of distribution regardless of the source of the defect. The “sealed container defense,” however, shields the sellers of defective products sold in sealed containers from liability for damages and injuries caused by defective products and leaves the manufacturers to bear the brunt of the liability exposure. This is an important defense that sellers should know is available to them.
To successfully assert the defense a seller must prove that:
(1) The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form;
(2) The seller had no knowledge of the defect;
(3) The seller, in performing duties or while the product was still in possession could not have discovered the defect while exercising reasonable care;
(4) The seller did not manufacture, produce, design, or designate the product’s specifications, which were the likely cause of the claimant’s injury; and
(5) The seller did not alter, modify, assemble, or mishandle the product in a manner which led to the claimant’s injury. (Md. Code, Courts and Judicial Proceedings Article § 5-405)
Essentially, if the seller is given the product in a sealed container, and could not reasonably have found a defect in the product and did not alter the product, the seller is not liable for damages.
The definitions important in this defense are manufacturer, product, sealed container, and seller. First, under this defense, manufacturer means a designer, assembler, fabricator, constructor, compounder, producer, or processor of any product or its component parts. Second, product means any tangible article, including attachments, accessories and component parts, and accompanying labels, warnings, instructions, and packaging. Third, sealed container means a box, container, package, wrapping, encasement, or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product. Essentially, a product is deemed sealed if the seller has no reasonable way to examine the contents in the product or open the product to look for defectiveness without ruining packaging. Finally, seller means “a wholesaler, distributor, retailer, or other individual or entity other than a manufacturer that is regularly engaged in the selling of a product whether the sale is for resale by the purchaser or is for use or consumption by the ultimate consumer.”
The best way to illustrate the sealed container defense is through an old case in Maryland In Cloverland Farms Dairy, Inc. v. Ellin, 195 Md. 663 (1950), a consumer became ill after drinking a beverage purchased from the seller which the manufacturer had bottled. The consumer brought an action against both the seller and the manufacturer for personal injuries. A chemical analysis found kerosene in the beverage. The court held that there was no evidence that the bottle was tampered with or even touched by anyone but the agent of the manufacturer who brought it to the cooler from which it was sold, and the buyer who purchased it. Therefore, the seller did not alter the bottle from its original shape. The kerosene was in the bottle at the time the manufacturer delivered it to the seller. The fact that the bottle, when purchased from the seller in its original condition, contained kerosene raised an inference of negligence on the part of the manufacturer and the seller was not held liable for the damages.
Other states have similar defenses for sellers. For instance, some states use the “passive seller” exception, where “passive sellers” who did not contribute to or cause the injury, death, or damage caused by the consumption of a food item are not held liable. A “passive seller is an individual or entity involved in the food supply system who exercised all possible care in the preparation and sale of the food item that caused the injury or illness, but did not create the unsafe condition causing the injury or illness.” This defense lessens the burden which strict liability imposes on sellers, because passive sellers are said not to have contributed to the unsafe condition; therefore, passive sellers are not held liable.
Ultimately, although there may be various nuances, sellers should know their possible defenses. However, each set of facts are different, so if you find yourself in this situation, it is important to seek legal counsel.