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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Why Retailers in Colorado are Ultimately Responsible for Selling Listeria-Tainted Cantaloupe that Sickened 40 – Killing Nine

There were no “Innocent Sellers” in this tragedy.  Retailers in Colorado have both a moral and legal responsibility to those who were sickened, and the families of those who died, after consuming Listeria-tainted cantaloupe.

The 2011 Listeria Cantaloupe outbreak was the most deadly in the United States in nearly 100 years.  Colorado was by far the hardest hit of the 28 states involved.  Download Outbreak Summary and Exhibits No. 1, No. 2, No. 3, No. 4No. 5 and No. 6.

The final report of the CDC totaled 147 persons infected with any of the five outbreak-associated subtypes of Listeria monocytogenes from 28 states. The number of infected persons identified in each state was as follows: Alabama (1), Arkansas (1), California (4), Colorado (40), Idaho (2), Illinois (4), Indiana (3), Iowa (1), Kansas (11), Louisiana (2), Maryland (1), Missouri (7), Montana (2), Nebraska (6), Nevada (1), New Mexico (15), New York (2), North Dakota (2), Oklahoma (12), Oregon (1), Pennsylvania (1), South Dakota (1), Texas (18), Utah (1), Virginia (1), West Virginia (1), Wisconsin (2), and Wyoming (4).

Among persons for whom information was available, reported illness onset ranged from July 31, 2011 through October 27, 2011. Ages ranged from <1 to 96 years, with a median age of 78 years. Most ill persons were over 60 years old. Fifty-eight percent of ill persons were female. Among the 145 ill persons with available information on whether they were hospitalized, 143 (99%) were hospitalized. Thirty-three outbreak-associated deaths were reported: Colorado (9), Indiana (1), Kansas (3), Louisiana (2), Maryland (1), Missouri (3), Montana (1), Nebraska (1), New Mexico (5), New York (2), Oklahoma (1), Texas (2), and Wyoming (2). Among persons who died, ages ranged from 48 to 96 years, with a median age of 81 years. In addition, one woman pregnant at the time of illness had a miscarriage. Ten deaths not attributed to listeriosis occurred among persons who had been infected with an outbreak-associated subtype.

Ultimately, the entire chain of distribution[1] – from farm to grocer (including auditors) – bears responsibility for this outbreak.  Who is more responsible – the farmer who grew the product, the auditor who looked the other way, or the retailer who simply cared that there was something on the shelf to sell?  That will be up to a jury to decide.

Few of us when we buy something like a cantaloupe in a grocery store could ever imagine that a grocer would ever claim that it has no moral or legal responsibility for selling you a product that sickened you or killed you husband or wife.  This is especially true when the grower is not financially responsible – bankrupt.  The moral issues aside, here are the legal reasons why a retailer will not escape responsibility or liability.

Strict Liability of Distributors and/or Sellers of the Products, “Innocent Sellers”

The Colorado Product Liability Act[2] provides that no such claim can be asserted against an innocent seller who is not a manufacturer, unless jurisdiction cannot be maintained against that manufacturer. If jurisdiction cannot be obtained over the manufacturer, then that manufacturer’s principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product.

13-21-402. “Innocent sellers”

(1) No product liability action shall be commenced or maintained against any seller of a product unless said seller is also the manufacturer of said product or the manufacturer of the part thereof giving rise to the product liability action. Nothing in this part 4 shall be construed to limit any other action from being brought against any seller of a product.

(2) If jurisdiction cannot be obtained over a particular manufacturer of a product or a part of a product alleged to be defective, then that manufacturer’s principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product.

A.        A “manufacturer” includes any entity involved in the production of the product.

Section 13-21-401, C.R.S., the Definition section, provides as follows:

(1) “Manufacturer” means a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer. The term includes any seller who has actual knowledge of a defect in a product or a seller of a product who creates and furnishes a manufacturer with specifications relevant to the alleged defect for producing the product or who otherwise exercises some significant control over all or a portion of the manufacturing process or who alters or modifies a product in any significant manner after the product comes into his possession and before it is sold to the ultimate user or consumer. The term also includes any seller of a product who is owned in whole or significant part by the manufacturer or who owns, in whole or significant part, the manufacturer. A seller not otherwise a manufacturer shall not be deemed to be a manufacturer merely because he places or has placed a private label on a product if he did not otherwise specify how the product shall be produced or control, in some significant manner, the manufacturing process of the product and the seller discloses who the actual manufacturer is.

The definition of “manufacturer” is expansive and is intended “to extend liability to those entities involved in the production of the product or otherwise in control [of] the production process.” Yoder v. Honeywell, 900 F. Supp. 240, 246 (D. Colo. 1995).  A “manufacturer” therefor also includes, as relevant to these cases:

  • A seller who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer;
  • A seller who creates and furnishes a manufacturer with specifications for a product that are related to the alleged defect, whether or not the seller placed a private label on the product;
  • A seller who exercises some significant control over all or a portion of the manufacturing process, whether or not the seller placed a private label on the product;
  • A seller who alters or modifies a product in any significant manner after the product comes into his possession and before it is sold to the ultimate user or consumer; and/or
  • A seller who placed a private label on the product and did not disclose who the actual manufacturer is.

(1) The “manufacturer” status applies to any seller who mandated and enforced requirements that the manufacturer meet specifications for a product that are related to the alleged defect, and/or exercised significant control over a part of the manufacturing process.

The “manufacturer” definition would thus apply to any product seller involved in mandating and enforcing minimum food safety specifications and quality standards related to the selection and processing of the cantaloupe food products, and related to the ultimate quality of those products. Those minimum specifications and standards involving food safety, when not complied with and when not adequately enforced, are clearly related to the existence of contamination in the cantaloupe food products. These standards and requirements also clearly significantly control, affect and determine the growing, selection, packaging, shipping and storage elements for the cantaloupes. Evidence of active involvement in the oversight of the manufacturer’s compliance with those requirements, whether directly or indirectly through audits, supports the assertion that the seller was exercising significant control over that manufacturing process.

(2) The “manufacturer” status also applies to any seller who alters or modifies a product in any significant manner after the product comes into his possession and before it is sold to the ultimate user or consumer.

The “manufacturer” definition would thus apply to any product seller handling the cantaloupe products in any way significantly altering or modifying those products. The shipping and storage practices and procedures for the cantaloupes could significantly alter or modify those products, as perishable goods. A seller, such a Kroger in this claim, involved in the cutting up the cantaloupe for sale would obviously alter or modify the product.

(3) The “manufacturer” status also applies to any seller who placed a private label on the product and did not disclose who the actual manufacturer is.

The “manufacturer” definition is consistent with Restatement (Second) of Torts § 400 (1965), which holds that “One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” The court in Long v. United States Brass Corp., 333 F. Supp. 2d 999, (D. Colo. 2004), found that “the actor expects its own name to carry some weight with the customer and hopes to capitalize upon, and preserve, its goodwill. This representation, which the seller makes for its own benefit, leaves the customer ignorant of who actually manufactured the product”.

B.        If jurisdiction cannot be obtained over a particular manufacturer of a product, then that manufacturer’s principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product.

If the manufacturer has already filed for bankruptcy prior to being named a party in a lawsuit, then no lawsuit can be filed against it and the court has no jurisdiction. There is no jurisdiction as to claims against a manufacturer already in bankruptcy that have not yet been filed, because the preexisting existence of the automatic stay makes every action subsequently started in a trial court void.

The automatic-stay provision of the bankruptcy code provides that the filing of a bankruptcy petition “operates as a stay, applicable to all entities, of . . . the commencement” of a judicial action against the debtor for a claim that arose prepetition. 11 U.S.C. § 362(a). The Texas Supreme Court has twice said that actions taken in violation of an automatic stay are void. Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992) (holding appellate court judgment void); Cont’l Casing Corp., 751 S.W.2d at 501 (holding party’s assertion of offset against account owed to bankrupt debtor void). In our only precedential [*551] opinion since Howell, we have reaffirmed that acts that violate the automatic stay are void. Stephens, 216 S.W.3d at 529; accord Raney v. Hall, No. 05-98-00436-CV, 2000 Tex. App. LEXIS 2905, 2000 WL 567054, at *1 (Tex. App.–Dallas May 4, 2000, no pet.) (not designated for publication); see also 3 COLLIER ON BANKRUPTCY P 362.11[1] (15th ed. revised 2009) (arguing that the better approach is to treat acts that violate the stay as void rather than voidable).

Other courts of appeals have construed the rule of voidness to mean that the trial court acquires no jurisdiction over an action commenced in violation of the automatic stay. See, e.g., York v. State, No. 2-08-118-CV, 298 S.W.3d 735, 2009 Tex. App. LEXIS 7534, 2009 WL 3078515, at *6 (Tex. App.–Fort Worth Sept. 24, 2009, pet. filed) (“The automatic stay deprives state courts of jurisdiction over proceedings against the debtor, and any action taken against the debtor while the stay is in place is void and without legal effect.”); Lovall, 2005 Tex. App. LEXIS 415, 2005 WL 110372, at *2 (“The bankruptcy stay deprives state courts of jurisdiction over the debtor and his property until the stay is lifted or modified. Therefore, any subsequent judicial proceedings taken against the debtor that are in violation of the automatic stay are void, not merely voidable.”) (citations omitted); Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 246 (Tex. App.–Corpus Christi 2004, no pet.), (“The automatic stay deprives a state court of jurisdiction over the debtor.”); accord Barton-Malow Co. v. Gorman Co. of Ocala, Inc., 558 So. 2d 519, 521 (Fla. Dist. Ct. App. 1990) (trial court did not acquire jurisdiction over third-party defendant because third-party complaint was filed after third-party defendant filed for bankruptcy); Cohen v. Salata, 303 Ill. App. 3d 1060, 709 N.E.2d 668, 671-72, 237 Ill. Dec. 413 (Ill. App. Ct. 1999) (complaint filed in violation of an automatic stay is void and does not invoke the trial court’s jurisdiction).  Brashear v. Vict. Gardens of McKinney, L.L.C., 302 S.W.3d 542, 2009 Tex. App. LEXIS 9497 (Tex. App. Dallas 2009).

Accordingly, as regards all the claims against the manufacturer that were not filed by the date of the bankruptcy filing, the courts have no jurisdiction, and the Colorado statutory “innocent seller” defense would not protect the next principal distributor or seller in line.

In these cases, any principle distributor or seller would step into the role of the manufacturer, with related liability exposure. The retailer who actually sold the cantaloupe to the consumer would clearly be such a principal seller of the product.

Even in those cases where a legal action against the manufacturer was filed before the manufacturer’s filing of bankruptcy, the completion of the manufacturer’s bankruptcy process may result in the finding of lack of jurisdiction over that manufacturer, for purposes of the non-manufacturer exception statute. “Neither party has addressed, and we do not decide, the impact on jurisdiction of a discharge or other conclusion of a bankruptcy proceeding.” Bond v. E.I. Du Pont De Nemours & Co., 868 P.2d 1114, 1117 (Colo. Ct. App. 1993).

The Sale of Cantaloupes Unfit for Human Consumption Breached Implied Warranties to the Consumer

The plaintiffs may also assert legally valid warranty claims against distributors and/or sellers of contaminated cantaloupe for the sale of food unfit for human consumption. See, e.g. Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 361, 363 P. 2d 667 (1961) (“It is elementary that one who sells an article for use as food for human consumption is held in law to have impliedly warranted that it is fit for the purpose for which it was sold, and for breach of that warranty proximately resulting in injury may be held to respond in damages.”).

These claims do not require privity. The Colorado Comment to C.R.S. §4-2-314 provides, in relevant part, “[the warranty] extends to any person reasonably expected to use, consume or be affected by the goods…thereby freeing any such beneficiaries of any technical rules as to ‘privity’.”

The 2012 version of the CJI 14:12 (IMPLIED WARRANTY OF WHOLESOMENESS OF FOOD) jury instruction, the most recent version of the Colorado Jury Instructions, defines for the jury the duty of the seller of defective food:

When a (insert an appropriate description, e.g., “packer,” “retailer,” “grocer,” “wholesaler,” “restaurateur,” etc.) sells (food) (or) (drink) for human consumption, (he) (she) (it) warrants that the product is wholesome and fit for human consumption at the time of the sale. This warranty is implied by law and need not be expressed in any fashion.

In the End it is About Being Responsible

As I said above, who is more responsible – the farmer who grew the product, the auditor who looked the other way, or the retailer who simply cared that there was something on the shelf to sell?  Did the retailer have specifications for cantaloupe?  Did the retailer ever visit the cantaloupe grower?  Did the retailer keep the cantaloupe cool?  Did the retailer wash the cantaloupe?  Is there a difference in the liability of a retailer for selling a brand name can of vegetables and selling a perishable product – like a cantaloupe?

Again, that will be up to a jury to decide.


[1] Joint and Several Liability – The liability apportionment statute, Colo. Rev. Stat. 13-21-111.5., abolishes joint and several liability, and generally each defendant is only liable for the percentage of fault attributed to it. The only statutory exception to strict several liability provides that joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act. Joint and several liability may be imposed based on evidence of a course of conduct from which a tacit agreement to act in concert can be implied. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995).

Liability can be attributed to non-parties, if those non-parties are identified within 90 days of the lawsuit being filed. Under subsection (3)(b), “persons against whom recovery is sought” includes designated nonparties. Barton v. Adams Rental, Inc., 938 P.2d 532 (Colo. 1997). A person who is immune from suit may be a nonparty designee so long as the person owes a duty of care to the injured plaintiff. Doering ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202 (10th Cir. 2001).

Negligence of Non-Manufacturers/Sellers of the Products, auditors – The innocent seller provisions of the Colorado Product Liability Act do not affect claims against those entities that neither manufactured nor sold the cantaloupe products, including any claims against those entities based on negligent acts or omissions.

Section 13-21-401(2) defines for the purposes of the Colorado Product Liability Act a “product liability action” in relevant part as “any action brought against a manufacturer or seller of a product, …”. The provisions in the Act addressing “product liability action” clearly apply only to the manufacturers and sellers of the product. The plain language of the innocent seller statute provides that, although product liability actions may not be brought against innocent sellers, “other actions” may be brought. Section 13-21-402(1) prohibits only product liability actions against nonmanufacturing sellers, expressly allowing other types of actions to proceed. Carter v. Brighton Ford, Inc., 251 P.3d 1179 (Colo. Ct. App. 2010).

A cause of action founded on negligence requires proof of the following elements: (1) a duty or obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure or breach of duty by the defendant to conform to the standard required by law; (3) a sufficient causal connection between the offensive conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of the plaintiff. Largo Corp. v. Crespin, 727 P.2d 1098, 1102 (Colo. 1986); Leake v. Cain, 720 P.2d 152, 154 (Colo. 1986).

The initial question in any negligence action is whether the defendant owed a legal duty to protect the plaintiff against injury. It is a well-established principle of Colorado jurisprudence that, “where a person should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another, there is a duty to avoid such harm.” Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, (D. Colo. 2000). Where damage is to be foreseen, there is a duty to act so as to avoid it. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980).

[2] Strict Liability of the Manufacturers of Products – In Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983, 987 (Colo. 1975), the Colorado Supreme Court adopted the doctrine of strict liability in tort set forth in the Restatement (Second) of Torts § 402A, providing for a cause of action against manufacturers or sellers of “any product in a defective condition unreasonably dangerous to the user or consumer or to his property.”

As developed in Colorado case law and codified at Colo. Rev. Stat. § 13-21-401, a product liability action means strict products liability arises when a product is unreasonably dangerous to the user because of a defect resulting from “the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product.” Colo. Rev. Stat. § 13-21-401(2). United States Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 2006 U.S. Dist. LEXIS 71266 (D. Colo. Sept. 29, 2006).

Strict products liability is the manifestation of a public policy decision to allocate the burden of accidental injury and loss resulting from products placed in the marketplace from the consumers who use them to those who place them there. A manufacturer or seller into the marketplace on the relative safety or dangerousness of a product places the focus of the inquiry. A consumer is justified in expecting that a product placed in the stream of commerce is reasonably safe for its intended use, and when a product is not reasonably safe a products liability action may be maintained, irrespective of the precise nature or type of defect alleged. United States Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 2006 U.S. Dist. LEXIS 71266 (D. Colo. Sept. 29, 2006).