Agriculture Reference
In-Depth Information
manner in which the produce was handled by the consumer could be said to have
contributed to a resulting injury. Of course, if the produce was contaminated by the
consumer—for example, by cross-contamination from meat—that would be a differ-
ent situation entirely. But barring these kinds of facts, the defense of contributory
negligence is simply unavailable.
The Sustainability and Local Food Movements and
Their Potential Effects on the Future of Product Liability
Historically, the rise of strict liability can be seen, in large part, as a reaction to the
parallel rise in the mass production and mass marketing of consumer products, espe-
cially food. As one court has explained in a decision adopting the rule of strict
liability:
The rule requiring a person injured by a defective product to prove the manu-
facturer or seller negligent was evolved when products were simple and the
manufacturer and the seller generally were the same person. Knowledge of the
then purchaser, if not as complete as the seller's, was suffi cient to enable him
not only to locate the defect but to determine whether negligence caused the
defect and if so whose. The purchaser of the present day is not in this
position. ” 36
And the purchaser of today still is not in this position; indeed, nearly 40 years later,
the purchaser's position is arguably much worse.
Although a century ago we would buy our fresh leafy greens from the farmer who
grew them, now we buy salad in a bag without any knowledge of where in the world
the produce was grown and who in the world processed it. Even the brand name on
the bag is no indication of who processed the produce, as we saw in the 2006 E. coli
O157:H7 outbreak linked to bags of Dole baby spinach. Dole had contracted with
another company to process and bag the baby spinach, and that company had in turn
contracted with a different company to grow and source the baby spinach. These facts
did not mean, however, that Dole could escape having a strict liability claim asserted
against it as the “apparent manufacturer” of the product. 37 Instead, the facts emphasize
just how diffi cult it is for the consumer to know whom to trust.
But now, in reaction to the string of widely publicized outbreaks, the public is
turning increasingly back to local farmers as a produce source that can be trusted. This
trend is often referred to as the “local food” movement, and it is in many ways a return
to past practices. Farmers markets selling locally grown produce were once a hallmark
of most major cities. 38 A recent nationwide bestseller by Barbara Kingsolver also
makes clear the growing allure of knowing the source of one's food. 39 She writes the
following:
This is a story of a year in which we made every attempt to feed ourselves
animals and vegetables whose provenance we really knew … and of how our
family was changed by our fi rst year of deliberately eating food produced from
the same place where we worked, went to school, loved our neighbors, drank
the water, and breathed the air.
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