Agriculture Reference
In-Depth Information
Far from being a romantic notion having nothing to do with food safety or the law of
product liability, the move toward the consumption of local food represents a
reaction to the same insecurity that called the rule of strict liability into being: the
need for food to be safe and the need for a remedy when it is not.
Conclusion
Consumers of fresh produce want choices that they can live with—literally. They will
pay more for the freshness and convenience of prewashed and packaged produce, but
not at the price of suffering injury or losing their lives. Indeed, if there was a way for
consumers to look at a produce product and tell whether it was contaminated, only
the safest producers would stay in business. Unfortunately, there is no way yet for
buying decisions to be based with confi dence on safety considerations. That is one
reason why the demand for organic produce has gone up, as has the attractiveness of
the local food movement. Such products may not be certainly safe, but they certainly
appear to be more trustworthy. In the end, with food, it is still all about trust and a
promise of safety and quality kept.
References
1. The “law in action” is a multidisciplinary approach that focuses on investigation of how the law actu-
ally works, using empirical studies, economics, sociology, and case studies.
See
, e.g., Marc Galanter ,
Real World Torts: An Antidote to Anecdote
, 55 Md. L. Rev. 1093 (1996) (using empirical research to
refute the existence of a “crisis” in the tort system). This approach is usually associated with the
University of Wisconsin Law School, which not coincidentally is the author's alma mater. For an essay
on what law-in-action means at the law school,
see
Kenneth Davis, Law in Action: The Dean's View.
Available at http://www.law.wisc.edu/law-in-action/davislawinactionessay.html, accessed September
30, 2008.
2. Linda Calvin ,
Outbreak Linked to Spinach Forces Reassessment of Food Safety Practices
, Amber
Waves, June 2007.
3. Meeson and Welsby 109, 152 English Reports 402 (1842).
4. D.G. Owen ,
Manufacturing Defects
, 53 S.C. L. Rev. 851 (Summer 2002).
5. 135 Pac. 633 (Wash. 1913).
6. M. Shapo , THE LAW OF PRODUCT LIABILITY, ¶ 6.01[2] (3d Ed. 1994).
7. 59 Cal.2d 57 [13] A.L.R.3d 1049 (1963).
8. Owen at p. 865 - 894,
supra
at Note 4.
9. Revised Code of Washington, 7.72.030(2)(a) (defi ning one standard of strict liability for a product
manufacturer).
See also
Owen at 866-70,
supra
at Note 4 (discussing the historical development of
the “ departure from design ” test).
10. Owen at 871 - 74,
supra
at Note 7. This doctrine is usually understood as a variation on the doctrine
of
res ipsa loquitor
, which means “the thing speaks for itself.”
11. G. Schwarz ,
New Products, Old Products, Evolving Law, Retroactive Law
, 58 N.Y.U. L. Rev. 796 , 810
( 1983 ).
12. Owen at 855-56 and fn. 27,
supra
at Note 7. The food cases at Marler Clark have consistently borne
this out.
See
, e.g.,
Almquist v. Finley School District
, 57 P.3d 1191 (2002) (conceding
E. coli
O157:H7
in a school lunch taco meat would make it defective but denying that the taco meat was the cause of
the outbreak in question).
13.
J.C. Buzby
et al.
,
Product Liability and Microbial Foodborne Illness
, Economic Research Service/
USDA, AER-799, at 13-23 (noting that, of 175 foodborne illness lawsuits that went to verdict from
1988-1997, only 31.4% were won by plaintiffs, and the median damage award was $25,560).
14.
Id.
at 6 (graphical representation of widely differing incubation periods, from less than an hour to over
3 weeks).
