UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009
Product Liability and Food in Washington State: What Constitutes Manufacturing?
Alex Ferguson(fn*)
I. Introduction
Every year in the United States, an estimated 76 million instances of foodborne illness occur, resulting in 5,000 deaths.(fn1) In 2007 alone, the United States Department of Agriculture estimated that one foodborne bacterium, Salmonella, cost injured victims over $2.5 billion.(fn2) With America's ever-increasing reliance on pre-packaged and convenience food products, food manufacturers' liability for foodborne illness-related lawsuits continues to grow.
Perhaps because of the ubiquitous nature of food as a commodity, food-related lawsuits have, in recent years, garnered considerable media attention.(fn3) Among the first notable foodborne illness-related lawsuits to attract national media attention were those stemming from a 1993 E. coli(fn4) outbreak associated with the Jack in the Box restaurant chain.(fn5) Affecting mostly consumers in Washington, the Jack in the Box E. coli outbreak left more than 600 victims sick and four children dead.(fn6) The source of the outbreak was eventually traced to tainted hamburger meat manufactured and sold to the restaurant chain by one of its suppliers.(fn7)
In the ensuing years, notable foodborne illness cases ranged from a 1996 E. coli outbreak resulting from unpasteurized Odwalla brand fruit juice(fn8) to a 2006 E. coli outbreak resulting from tainted spinach.(fn9) The latter outbreak, caused by fresh spinach and spinach-containing products processed by Natural Selections Foods,(fn10) left 205 consumers ill and three dead.(fn11) The Food and Drug Administration traced the source of the contaminated spinach to four fields located in central California.(fn12) Although the source was identified, consumers felt defenseless against the continuing threat of contaminated food products.(fn13) In the words of a husband whose wife suffered kidney damage after consuming the tainted spinach, "I'm just so terribly angry that a contaminated product like this could be put out on the open market and affect so many people. There has to be some responsibility here."(fn14)
Public demands for corporate responsibility for injuries caused by merchantable goods, such as consumer food products, are at the root of modern product liability law.(fn15) In contrast to the traditional manufacturer defenses of caveat emptor and privity of contract available in the nineteenth century, manufacturers of defective products in the twentieth and twenty-first centuries have been held strictly liable for the injuries caused by their products.(fn16)
Washington, the jurisdiction of primary focus in this Comment, follows the modern approach of holding product manufacturers strictly liable for injuries to consumers caused by defective products.(fn17) Unfortunately for consumers injured by unsafe food in Washington, the state's courts have inconsistently interpreted the definition of "manufacturer" contained in the Washington Product Liability Act (WPLA).(fn18) Because a non-manufacturing seller can be held liable only for negligence, whether the seller of an unsafe food product is a manufacturer under the WPLA critically impacts the seller's liability. Thus, without consistent statutory interpretations, both food producers and consumers face unpredictable trial outcomes and costly litigation.
To address the courts' inconsistent interpretations of the WPLA's manufacturer definition, this Comment proposes applying a test that assesses manufacturer liability not only by the apparent physical changes an entity makes to a product, but also by the increased monetary value the entity adds to the product. This approach comports with the intent of the WPLA and Washington common law standards, and leads to highly predictable trial results.
Part 11 of this Comment provides a brief history of Washington's product liability law, from early twentieth century theories of implied warranty to the mid-twentieth century adoption of the pro-consumer strict liability standards of section 402A of the Restatement (Second) of Torts. Part 111 examines manufacturer liability in Washington after the 1981 adoption of the WPLA. Part IV analyzes the various approaches Washington courts currently use to determine manufacturer liability, specifically focusing on the contradictory outcomes of Almquist v. Finley School Dist. No. 53(fn19) and Hadley v. Spokane Produce, Inc.(fn20) Part V examines an alternative approach for determining manufacturer liability found in Washburn v. Beatt Equipment Co.,(fn21) which uses the "relevant product" framework already present in the WPLA. Part VI proposes a workable test that resolves the inconsistencies in the approach used by the Almquist and Hadley courts by using the Washburn approach as a reference point. This proposed test, named the "value-added" test, will provide Washington courts with a consistent standard to apply when defining manufacturer liability under the WPLA. Part VII concludes by addressing potential concerns about the value-added test and its conformity with the WPLA.
II. Product Liability Law in Washington
Beginning in the early nineteenth century, U.S. law adhered to the principles of caveat emptor and privity of contract.(fn22) The rule of caveat emptor, literally meaning "let the buyer beware," holds the buyer of a product responsible for both obvious and hidden defects in the product.(fn23) Privity of contract restricts those injured by defective products to bringing actions against only those persons with whom the injured party had a direct contractual relationship.(fn24) These two principles, rooted in seventeenth century English law,(fn25) reflected the early U.S. court system's commitment to individualism and free enterprise.(fn26)
Prior to the early twentieth century, Washington courts also followed the rules of caveat emptor and privity of contract. As the Washington Supreme Court explained in Mazetti v. Armour and Co.,(fn27)[i]t has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate vendor.(fn28)
The Mazetti Court, however, also recognized an important emerging trend in the modern American manufacturer/consumer relationship: consumers in the early twentieth century were increasingly relying on the safety of canned and already-prepared food products.(fn29) The Court stipulated that a consumer, relying on a company that adverts itself as a manufacturer and seller of pure food articles, cannot be expected to detect impurities in food from a seemingly flawless can.(fn30) In other words, there was no way for the buyer to beware; buyers had to trust in the quality of the food.
The focus in Mazetti on packaged food products logically flowed from a long-standing exception to the privity of contract rule that allowed direct consumer actions against manufacturers of medicines.(fn31) The court explained: "Direct actions are allowed in [medicine manufacture] cases because the manufacturer of medicines is generally shrouded in mystery, and sometimes, if not generally, [medicines] contain poisons which may produce injurious results."(fn32) Recognizing that food-product consumers, like medicine consumers, cannot "chemically analyze" a prepackaged food product before buying or consuming it, the Mazetti Court held that "the original act of delivering the [defective] article is wrongful, and that every one is responsible for the natural consequences of his wrongful acts."(fn33) Thus, Mazetti ushered in the new standard of liability for food-product manufacturers: "A manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in the original packages."(fn34) This implied warranty was available to all consumers who acquired the packaged food product through legitimate channels of trade, including resellers and the ultimate consumers.(fn35)
For fifty-six years following Mazetti, Washington courts recognized an implied warranty of fitness for human consumption in food products/(fn36) The premise of this implied warranty theory was that the law imposes a special warranty (or promise) that food sold is wholesome and fit for human consumption.(fn37) The warranty attaches to the food product and, therefore, is available to anyone injured by its breach. Although analogous to the common law standard of implied warranty in contract, this implied warranty theory arose under tort,(fn38) reflecting a common law trend not just particular to Washington but also to the early twentieth-century American judicial system as whole.(fn39) As the century progressed, pro-consumer court holdings gained significant momentum.
III. THE DEVELOPMENT OF THE WASHINGTON PRODUCT LIABILITY ACT
By the middle of the twentieth century, the modern American judicial path toward strict product liability in tort was in full swing.(fn40) As the distance between the manufacturer and buyer grew, and the ability of consumers to detect defects lessened, the need for a legal remedy became more apparent. Courts in cases like McPherson v. Buick Motor Co.(fn41) and Henningsen v. Bloomfield...
