Agriculture Reference
In-Depth Information
was the rule of joint and several liability. With joint liability, anyone who in any way
contributed to causing the injury is liable for the entire amount of the damages. In
contrast, several liability is the liability for only that portion of the damages for which
you can be deemed responsible for causing. The rule of joint and several liability is
a confusing name meaning that a company is both jointly
and
severally liable for
damages.
It is because of the rule of joint and several liability that we get the term “deep
pocket” defendant. When a severely injured person is looking to sue he will want to
pick the defendant who has either the most money or insurance (i.e., one with “deep
pockets”) so he can recover all of his damages from one defendant, rather than being
forced to sue multiple defendants in order to fully recover his damages.
What, then, was the seller hit with a big product-related damage award to do? One
thing was an indemnity or contribution action, a subsequent lawsuit fi led to recover
the damages paid on behalf of the person or company actually at fault. So, for example,
if you are a grocery store owner and end up getting sued for selling a bag of contami-
nated baby spinach, you could pay the damage award (or, more likely settle), and then
turn around and sue the processor of the baby spinach to recover what you paid. The
processor could then turn around and sue the grower who sold the contaminated baby
spinach. Or, in the more likely scenario, all of these entities would be joined in the
initial lawsuit fi led by the injured person, and the jury would then sort out who is
responsible for how much of the fault and thus the damages.
Rather than leave the allocation of fault to chance, many choose to allocate fault
by contract. Thus, for example, the supply agreement between the grower and the
processor might state that the grower is responsible for all damages related to the
supply of contaminated produce, regardless of what a jury ends up deciding. Such an
agreement would be made a condition of the two entities doing business, and might
also include the requirement that the grower obtain suffi cient insurance to cover any
possible award of damages and also attorney fees. Agreements like this (sometimes
also referred to as “hold harmless” agreements) are becoming increasingly common
in the produce industry.
Consumer Responsibility and Contributory Negligence
In many food cases, particularly those involving meat products, the issue of consumer
responsibility can become an issue. For example, in numerous cases involving ground
beef, the manufacturer has taken the position that the injury occurred not because of
contamination, but because the consumer did not cook the ground beef properly. In
legal terms, this is usually called
contributory negligence
, because the injured person's
own negligence is alleged to have contributed to his injury. The way this usually plays
out is that the jury is asked to assign a percentage amount of fault to the contributory
negligence, and the amount of damages awards is reduced by that percentage. Some
states disallow any recovery if the percentage of fault is higher than 50.
The defense of contributory negligence is unlikely to be an issue in cases involving
produce for one simple reason: fresh produce is commonly eaten raw. Indeed, with
leafy greens, such as lettuce and spinach, this is nearly always the case. And with
products such as bagged salads, the fact of their being prewashed and ready- to - eat is
the key selling point. As a result, it would be an exceedingly unusual case where the
