Whether adopted by statute, regulation, or ordinance versions of the Food Code constitute so-called public law regulation of food. However, state common law has also long addressed food safety concerns as well. In fact, cases involving harms from food gave rise to modern products liability law. The cases in this section illustrate the range of common law food safety claims that are often brought under the broad rubric of food liability.
Notes: <p>1. Causation. Whether brought in a negligence or strict liability action, the plaintiff still must show that their injury was caused by the food product. Causation is not always a trivial endeavor. Absent affirmative evidence or immediate temporal proximity, the causation element may not be satisfied and recovery may be barred.</p>
<p>2. Traceability. In recent years, there has been a strong push towards what is sometimes called “traceability.” The basic idea is that it should be possible to trace a food back through the entire chain from production to consumption. The more traceability in the food system, the easier causation will be to satisfy.</p>
Trabaudo is a case involving an ordinary state common law tort claim and an alleged violation of a state pure food statute. The state statutes is similar to the federal law, but provides a state private right of action.
Defendants, who? Note that the defendant in the this case was a community organization that sold sausages as a fundraiser. The community organization, in turn, had purchased the raw pork from Meat Market to the make the sausages. Which defendant is in the best position to prevent injuries of this sort? The initial producer, the reseller, both, or neither? Commentary on tort law sometimes uses a concept known as the cheapest cost avoider. The idea is to impose the legal responsibility for avoiding an injury on the party with the party best situated to avoid the harm most easily. Is that idea at play in this case? Who is the cheapest-cost-avoider in this scenario?
Tort, what? The plaintiffs had several legal theories in this case. First, they argued that defendants were negligent in failing to inspect the pork for trichinae and in failing to warn them of the danger of eating raw pork and the methods available to render it safe. That is, they alleged the defendants failed to take a required precaution (inspection) and also failed to warn about the risk. Second, the plaintiffs argued that defendants breached an implied warranty of fitness and violated the state Uniform Deceptive Trade Practices Act, by misrepresenting the pork sausage as being wholesome. Third, plaintiffs argued that assert that defendants' sale of “adulterated” food constituted a violation of the state pure food act. What exactly is the relationship between these three claims? Is it possible to violate on of these legal obligations and not the others or is the idea that breach of anyone of these obligations would by implication generate legal liability for the other claims?
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