For several months now, listeria—a serious foodborne bacterial illness—infections were spreading through the United States. According to the CDC, the source was found to be liverwurst products produced at a plant in Jarratt, Virginia, operated by Boar’s Head Provision Company. In response, Boar’s Head recalled its liverwurst and other products and, eventually announced plans to close the plant indefinitely. Yet, for many, the damage was already done. It was the largest listeria outbreak since 2011, the CDC stating that at least 59 people have been hospitalized and ten have died.
This situation raises many questions. But one that some folks out there may have is, what can be done when a person is injured, or even dies, due to a contaminated food product? Who can be held responsible? The experienced attorneys at Fishwick & Associates PLC can answer; to find out more, continue reading below.
What is products liability law in Virginia?
When a person suffers an injury due to harmful product, they may be able to hold the manufacturer, distributor, or seller responsible for their damages due to defects in design, manufacturing, or marketing. While defective design refers to some flaw inherent in the product itself, defective manufacturing refers to some defect in the production process. Defective marketing, on the other hand, arises when the risks of a product are not adequately warned of or labeled.
There are generally three types of products liability claims available under Virginia law: breach of express warranty, breach of implied warranty, and negligence. Unlike other states, Virginia does not recognize strict liability (holding the manufacturer responsible regardless of fault) in products liability claims.
Breach of express warranty occurs when the manufacturer or seller falsely makes a particular promise about the product. For example, if a company expressly promised a customer that its food was safe to consume, selling contaminated food products would likely fall under breach of express warranty. Aside from large scale, business to business transactions, however, express warranties are rarely made.
Breach of implied warranty occurs when the manufacturer or seller fails to adhere to a particular standard. An implied warranty is essentially how the law recognizes consumer expectations about products. In the food products context, for example, most if not all consumers would expect food sold for consumption to be safe to eat. In fact, as detailed below, Virginia law specifically recognizes this as a warranty implied in the sale of food products.
Negligence occurs when the designer, manufacturer, or the seller of the product breaches a duty owed to consumers through inadvertence. For example, if a manufacturer fails to clean food producing equipment daily and causes a contamination that injures a consumer as a result, they may be liable for negligence.
Ultimately, it does not particularly matter what theory a products liability case is brought under in the food products context, because whether for breach of warranty or negligence, the plaintiff must prove the same elements:
(1) that the food was unreasonably dangerous either for the use to which it would be put or for some other reasonably foreseeable purpose; and
(2) that the unreasonably dangerous condition existed when the food left the defendant’s hands.
One example of a food products liability case is Bussey v. E.S.C. Restaurants Inc. There, a diner ate beef tips at a Golden Corral restaurant but, after eating a portion, noticed that the meat smelt bad. Later, the restaurant’s manager came to her table and confirmed that the meat was bad. She suffered food poisoning to the extent that she was hospitalized for four days, and Golden Corral was held responsible for her damages.
What warranties does a food manufacturer make in Virginia?
Under Virginia law, when a person or company offers food or beverage for sale to the public, they warrant that the food or beverage is free of foreign substances and is fit for human consumption. That is because, under Virginia Code § 8.2-314, “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind,” and the “serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.”
When it comes to food products, “merchantable” includes “of fair average quality within the description” and “fit for the ordinary purposes for which such goods are used.” In other words, because the purpose of food products is to consume them, a seller of food products guarantees to buyers that the food is fit to be consumed.
What are a food manufacturer’s duties in Virginia?
Food manufacturers have a number of duties under the Virginia Food Act (Va. Code § 3.2-5100, et seq.). These include daily cleaning of all instruments and machinery used in moving, handling, cutting, chopping, mixing, canning, and any other process; protecting food from flies, dust, dirt, and all other foreign or injurious contamination; and sterilizing bottles and containers used for drink products via boiling water, live steam, or a hot caustic solution. Violations of these requirements of the Virginia Food Act range from a Class 3 (up to $500.00 fine) to Class 1 misdemeanor (up to 12 months in jail and a $2,500.00 fine).
The Virginia Food Act also prohibits the manufacture, sale, or delivery, holding or offering for sale of any food that is adulterated or misbranded, as well as the giving of a guaranty or undertaking concerning a food, which guaranty or undertaking is false, among other things. A food is considered adulterated if, for example, it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food. A food is misbranded, on the other hand, if its labeling is false or misleading. Violations of these prohibitions constitute a Class 1 misdemeanor.
What defenses are available to a food manufacturer in Virginia?
As can be seen from the above, there are several ways to hold food manufacturers responsible for producing and selling food not fit for human consumption. However, an injured party’s own actions or knowledge may shield the manufacturer from liability in certain cases.
If a plaintiff uses a product in an unforeseeable way, that plaintiff cannot recover. That is not an issue likely to come up in the context of food products. Hypothetically, a person who eats dog food (perhaps on a dare) and gets sick as a result may have a challenge suing the dog food manufacturer—after all, the food was probably not intended to be consumed by humans to begin with.
Another important rule in Virginia is that there is no implied warranty when the buyer inspects the product before purchase and the unfitness of the product becomes known to the buyer or is visible or obvious. This situation might arise in the food manufacturing context if the food in question is obviously not safe for human consumption—for example, if there is visible mold on it—and the consumer knew or should have known so before eating the product.
Have you or a loved one been exposed to unsafe food products? Contact Fishwick & Associates to Discuss Your Legal Options
Consuming unsafe food products can lead to serious and dangerous consequences, even death, as has become evident with the Boar’s Head liverwurst and listeria situation. If you or a loved one have been exposed to unsafe food products and injured as a result, do not hesitate to seek legal counsel! To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.
References
1 Virginia Model Jury Instructions – Civil Instruction No. 34.090 (2024).
Va. Code § 8.2-314.
Va. Code § 3.2-5100, et seq.
Bussey v. E.S.C. Rests. Inc., 270 Va. 531, 620 S.E.2d 764 (2005).
1 Virginia Model Jury Instructions – Civil Instruction No. 34.100 (2024).
1 Virginia Model Jury Instructions – Civil Instruction No. 34.110 (2024).