Agriculture Reference
In-Depth Information
on the maker's negligent conduct, but on the product's hazardous char-
acteristics, and have to establish that the product itself was intrinsically
defective for its intended use because of a design or production defect or
because it lacked sufficient warnings and safe use instructions, and that
such defectiveness of the product was the proximate cause of the harm.
As noted earlier, a few courts have also accepted the Nuisance claim
that the maker of a product is liable when it is substantially involved
in another's use of its product that creates the nuisance that harms the
neighbor's property interests. Thus, the neighbor may also recover dam-
ages under Nuisance theory in such courts.
The third scenario involves the inadvertent mixing of GM and con-
ventional crops by downstream parties who play important roles in the
food supply system, such as those who store, distribute, transport, and
sell crops to the makers of processed food products. As in the second sce-
nario, customers who contracted for conventional crops without any GM
content are likely to cancel orders, and the consequent business losses
would accrue to all parties within the food system. Once again, Negli-
gence and Strict Liability theories could provide a basis for imposing
liability on the parties implicated in the “contamination” incident and
possibly on the makers of the GM seed as well, except in those states
that do not allow these liability theories to be applied in cases involving
claims of purely economic loss. In such states, these theories are limited
to cases involving personal injury, and other law must be relied on by
the plaintiff to secure damages for economic loss, such as contract and
warranty law.
In each of these briefly described scenarios, other factors will also
play an important role. The plaintiff must prove causation by a prepon-
derance of the evidence. This poses a major challenge in the first scenario
involving a personal injury claim because of scientific uncertainty about
GM food. The defendant will also have the opportunity to refute the
plaintiff's evidence of causation and other aspects of the plaintiff's case,
and may raise potentially conclusive defenses such as federal preemption
of common law, expiration of the time in which the case can be brought
