Agriculture Reference
In-Depth Information
that ill individuals may have in common. Added to that is the increased use of cus-
tomer loyalty programs at grocery stores that give consumers the ability to obtain
proof of a particular purchase on a particular date. In contrast, if we are dealing with
a commodity produce product like heads of iceberg lettuce, or bunches of green
onions, it becomes less likely that such products will be identifi ed as potential sources
of infection.
The Persistent Role of Negligence in Product Liability
Negligence is the failure to exercise ordinary care, and in most cases knowledge of
the risk defi nes ordinary care. Actual knowledge is not required, however. The law
attributes to one who acts both what is known and what should be known or have
been discovered. In other words, ignorance is no defense where the facts known
or
available
would have alerted a reasonable person to the likelihood of danger.
When dealing with a strict liability claim involving a manufacturing defect we
know that proof of negligence is not required. This does not mean though that there
is no fault; it means only that the plaintiff need not prove fault to hold the manufacturer
liable for damages. And since a manufacturer cannot be held liable more than once,
and so provide an injured person with a kind of double recovery, proving the elements
of negligence, in addition to the elements of strict liability, gains nothing. That said,
there are times when proof of negligence is necessary, as in when the entity being
sued is not a manufacturer, and strict liability does not apply. It can also be necessary
when trying to show that one or more entities involved in the manufacture or sale of
the product have varying degrees of fault. And, from a psychological point of view,
a jury is more likely to award higher damage amounts if jurors are angered by the bad
behavior of the company being sued. As a result, negligence continues to play a large
law - in - action role.
Statutory Law and Standards of Care: How Careful Is Careful Enough?
Both tort and statutory law have regulatory effects. For example, a statute like the
Federal Food, Drug, and Cosmetic Act (FDCA) prohibits the introduction into inter-
state commerce of food that is adulterated by virtue of containing a poisonous or
deleterious substance that may render it injurious to health, or by virtue of having
been prepared, packed, or held under unsanitary conditions whereby it may have been
rendered injurious to health, among other things.
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But that statutory prohibition does
not dictate a particular way to prevent food from becoming adulterated. Put another
way, it does not describe the standard of care that a food processor must exercise; the
statute simply states that the food should not be adulterated. Thus, it was left to the
FDA, which has jurisdiction under the FDCA, to defi ne the standard of care through
the promulgation of regulations, including, among other things, good manufacturing
practices (GMP) and regulations that require implementation of Hazard Analysis and
Critical Control Point (HACCP) systems.
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The GMPs are not the end of the story, however. Although the GMPs are not often
revised, the FDA continually issues guidance documents in the form of policy state-
ments, letters to industry, and industry guidelines, none of which are intended to have
binding regulatory effects, but all of which make recommendations about the level of
