• Sarah Everhart

Understanding Foodborne Illness Civil Liability

Updated: Jul 23

By Sarah Everhart and Ashley Ellixson

Plate on a plaid tablecloth with a burger, corn and salad (Photo by Edwin Remsberg).

The Center for Disease Control and Prevention (CDC) estimated in 2011 that each year 48 million people, or 1 in 6 Americans, get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. Ingesting food contaminated with disease-causing microbes, pathogens, poisonous chemicals, or other harmful substances causes foodborne illness. When an individual becomes sick or dies from a foodborne illness, the individual or family often pursue legal action to compensate for their losses and related damages. Most civil foodborne illness cases are brought to court under one of these theories of liability: (Note- the availability of these legal claims varies by state. All three described below are available in Maryland)

• Strict Product Liability: Legal doctrine under which a party whose business is selling or distributing products, and who sells or distributes a defective product, is liable, without proof or fault, for harm to an injured person caused by the defect. • Breach of Implied Warranty of Merchantability: Similar to strict liability where no fault is required, liability is established if the evidence shows 1) the product was not reasonably fit for the ordinary purposes for which it was sold and 2) such a defect caused injury to the ultimate consumer. • Negligence: Although not commonly used in Maryland and other states with strict product liability, a negligence claim can be made if the defendants in the lawsuit were negligent in their handling of the contaminated food which led to their sickness. Negligence can be established if the manufacturer or distributor failed to “exercise reasonable care” in producing the product.

One of the most challenging parts of a foodborne illness case is causation. Namely, was the consumed food contaminated and did the contamination cause the illness or injury? For example, in a case of E. coli or Salmonella, the link between the foodborne illness and the producer can be very difficult to prove, unless part of a wider outbreak. If causation is proven, because of joint and several liability, everyone in the chain of distribution, no matter where in the chain the contamination occurred, is potentially liable including farmer, processor, and/or retailer. In addition to everyone being potentially liable, joint and several liability also means that any individual alone in the chain of distribution can also be responsible.

Some of the possible defenses in a civil foodborne illness lawsuit are: • Assumption of Risk: If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to use the product and is injured by it, the consumer may be barred from recovery of damages. • Contributory Negligence: If the defendant’s negligence contributes in any degree to the injury, the contributory negligence is a complete bar to recovery. This is not a defense to strict liability but could be a defense to a negligence claim. • Product Misuse/Mishandling: This defense applies where the injury results from abnormal handling or misuse of the product. Example: Undercooked meat. • Directions and Warnings: This defense applies when a consumer disregards warnings or instructions supplied with the product where, if used correctly, the product would be safe. • Sealed Container Defense in Maryland: This defense protects the seller from product liability when the seller received a sealed product and could not have known of the defect/adulteration or caused the defect/adulteration. Example: A produce stand operator selling honey in jars.

Although this blog post outlines some legal defenses one can assert to thwart legal claims in a foodborne illness suit, the best defense for any producer of food is a good offense. In other words, the best strategy is to establish stringent food safety preventive measures to prevent contamination of food products. For more information on Maryland’s Good Agricultural Practices Program visit the Maryland Department of Agriculture’s website: http://mda.maryland.gov/foodfeedquality/Pages/good_ag_practices.aspx

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