I received an email today from one of my many “fans” suggesting that it might well be a good idea to export me to some hot, dark location. I think the actual language was “Marler, go to hell!” It was unclear if it came from one of the hundreds of big companies that I have sued over the last two decades for poisoning their customers, or from some member of the “teat” party (cross between the tea party and proponents of raw milk). Thinking that hell might not be the best option, I thought of the hell that Germany is now going through. With more than 600 people sickened with E. coli O104 and over 140 who having developed Hemolytic Uremic Syndrome, and as many as 5 dead, they are in a living hell. Perhaps being exported to Germany is an option?
Interestingly, the E. coli O104 outbreak and Germany and the E. coli O111 outbreak last month in Japan (sickened nearly 100, many seriously, with 4 deaths), is in stark (but good contrast) to what seems to be a significant downturn in E. coli outbreaks in the United States. Sure, in 2009 we had outbreaks linked to cookie dough, JBS Swift beef and beef from Fairbanks Farms, and in 2010 there were outbreaks linked to National Steak and Poultry, Romaine Lettuce and Bravo Farms Cheese, and since the beginning of 2011 there have been small outbreaks from hazelnuts and bologna. However, either public health is so underfunded that they cannot catch an outbreak, or the food industry has finally taken my advice and are “putting me out of business.” Now, whether that is because I have sued them at every option, or the hundreds of food safety speeches I have given, the E. coli outbreak numbers are down, and that is a good thing.
So, today, in light of the ongoing enterohemorrhagic E. coli outbreak in Germany, and out of sheer curiosity, I did a little research into German tort law. I wanted to know what potential claims German victims and their families could establish in order to recover for the injuries they sustained after eating contaminated food – Spanish cucumbers. Now that the outbreak has been linked to a source, perhaps there could be a lawsuit (or several) on the horizon? My research findings were interesting and seem to indicate a few avenues of recovery for the victims.
Similar to tort law in the United States, the law in Germany provides that a claim against a manufacturer, distributor, supplier, retailer, or other entity that make products available to the public falls under the broad category of product liability. Today, the German law of product liability is based on three theories: contractual liability, negligence, and strict liability.
From what I gathered, contract law doesn’t seem to be a successful route in German product liability actions. Contractual liability only arises where the claimant and the defendant are in a contractual relationship, thus, a consumer would not be able to sue the manufacturer of a defective product, in this case contaminated food.
A more viable possibility would be for German individuals to sue under a negligence theory. Unlike the United States, which uses a common law legal system, Germany follows a civil law system based on a set of laws set forth in the German Civil Code, or Bürgerliches Gesetzbuch (BGB). Derived from Roman law, the BGB is broken down into 5 main parts or “books.” The Law of Obligations, or Recht der Schuldverhältnisse, found in Book 2 of the Civil Code, contains the laws surrounding obligations between persons, including tort law.
Section 823(1) of the BGB states, “A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.” This section serves as the basic, catchall provision for most tort claims.
Reading this section carefully, though, shows that the law requires the injury to be not only negligent, but also unlawful. Essentially, the law requires plaintiffs prove the their injury occurred as the result of an unlawful breach of a duty of care, or Verkehrspflicht. With regard to product liability, the Federal Supreme Court of Germany has held that, “A person acts unlawfully if, during the production or distribution of the product, he or she does not exercise the diligence which is objectively due” and allows a defective product to enter the marketplace. Under this theory, a supplier of a defective product can be held liable even if the producer cannot be identified.
If the claimant is able to establish negligence, Section 842 of the BGB dictates, “Liability to compensate for damage resulting from a tort directed against the person extends to the disadvantages the tort produces for the livelihood or advancement of the injured person.” Essentially this means that a claimant may be awarded pecuniary, or economic damages, and non-pecuniary damages, or what we refer to in the U.S. as damages for pain and suffering. However, significantly, pain and suffering awards are far more conservative in Germany than they are in the U.S.
The third basis upon which to bring a product liability claim would be strict product liability. The German Product Liability Act (PLA) provides for a strict liability regime in which certain persons or entities may be held liable for a claimant’s personal injuries regardless of fault. Interestingly, the PLA typically permits recovery of economic and non-economic damages as well; it sets stricter limits on recoverable damages and who can be held liable.
I thought punitive damages might be another route for German victims to take; however, it seems that punitive awards are not recoverable and, in fact, are considered contrary to public policy.
In addition to claims brought by the individual, it may also be worth noting that the BGB provides for third-party compensation claims in the case of death in Section 844 and compensation claims for lost services in Section 845.
So, I am looking at flight options to Germany (perhaps Japan too).