Strict Liability and Negligence and when they apply and chain of distribution liability.


A consumer buys a food item at a store, handles it appropriately, eats it and gets sick from Salmonella or E. coli. Who is legally responsible? The store, the distributor, the manufacturer, the supplier of the particular ingredient that was contaminated? As with most things legal, it depends. The most important variable is the law of the state in which the person was injured. But several basic principles are at work in almost all food illness cases, whether the food product was bought at a store or in a restaurant. And the starting point is that food is a product, something that is made, and injury from food therefore invokes product liability law.

In most states, product liability law provides that any entity that “manufactures” a (food) product is “strictly liable.” That means legal liability even without evidence of wrongdoing, any conduct that might be termed negligent or unreasonable. An entity that makes a food product—at a farm, a manufacturing plant, or a restaurant—that injures a consumer is legally responsible for the injuries caused. Even if it did everything right. The legal principle at work is the innocent consumer should not suffer the burden of an injury caused by product made and sold for profit.

Is everyone who handles an injurious food product potentially liable then? No. Most states’ laws will not hold a retail food seller liable if it simply sold a contaminated food product it did not manufacture unless there is evidence of negligence, some unreasonable act. Suppose you buy romaine lettuce contaminated with E. coli from your local supermarket. Is the market liable? No, it has only put the lettuce out for sale and not altered it in any way. But suppose the same lettuce is put on a sandwich the supermarket sells which injures a consumer. Now it is probably strictly liable for selling a “product” (the sandwich) which is “manufactured,” and which injured the consumer.

The same principles apply at restaurants. Almost anything you consume from a restaurant will have been “manufactured” by the restaurant and it will be strictly liable if it makes you sick. This is true even if the restaurant did everything right and was simply supplied with a contaminated food ingredient. Of course, in such a case, the manufacturer of the ingredient is also on the legal hook and is likely to bear the ultimate responsibility for any injuries caused.

Often, especially in outbreaks where many people are sickened, the question of who is legally responsible and why is complex and the focus of litigation. The arguments arise both among those injured and the companies that were involved in the production of the food at issue and among the defendant entities that played some role in manufacturing, distributing, and selling the food at issue. Let’s go back to our E. coli contaminated romaine lettuce. It is grown on a farm then the lettuce is harvested and send to a processor which may clean, mix, package and label the lettuce. Then it is sent to a distributor which must keep the lettuce at the right temperature and deliver it to retail stores, where potentially, it could be further processed or combined with other food items, as in the sandwich example.

In such an outbreak, there may be many business entities all involved in generating the romaine you find at the store. Any or all of them could be strictly liable if they added value to the product by altering it in some way to enhance its value. The distributor of the lettuce in our example is probably not going to be strictly liable, because it did not change the product in any way. However, there are states which hold that any entity “in the chain of distribution” of the product is strictly liable. In essence, if you touched the product you are stuck. In reality, the question of who must pay for injuring the consumer turns on questions of the role each entity played in creating the product, causing the contamination, and its contractual relationship with other entities in the chain of distribution.

Most companies that handle a food product will protect themselves legally by requiring that an “upstream” company which gave them a contaminated product must protect them from legal claims. In our example, the distributor of the lettuce which simply shipped it from the processor to the market will not be stuck, the legal burden will fall on the grower and processor to pay potential claims. Of course, it is ultimately large insurance companies that pay the cost when tainted food products injure consumers.

As you can tell, being involved in a foodborne illness claim can get complicated, especially when there are multiple entities involved in making whatever food product injured consumers. Who is legal responsible can be a challenging question to answer and is the source of much foodborne illness litigation.

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