Negligence and the Implied Warranty of Merchantability with Foreign Objects in Food

Written by Delia deBlass, Esq.

Edited by Bill Pfund, Esq.

When a foreign object is found in a food product, a Plaintiff will typically bring their claim under a products liability action. Plaintiff has the option of bringing two different, but intertwined claims: negligence and/or breach of implied warranty of merchantability. But is there a difference in the claims, and does it matter?

Negligence in this instance is a well-known concept, in that the Plaintiff has to prove duty, fault, causation and damages. There are three different types of negligence that can apply with products liability: (1) negligent design; (2) negligent manufacture; or (3) negligent failure to warn.

With foreign objects in food, negligent failure to warn is most often pled. A negligence claim will focus on the conduct of the food product supplier in failing to warn users of dangers that could come about by the product’s use.

That being said, a plaintiff can also bring a breach of implied warranty of merchantability claim. The implied warranty of merchantability is a claim that has roots in both Virginia case law and Article 2 of the Uniform Commercial Code (UCC) as adopted by Virginia. Article 2 of the UCC deals with consumer transactions. Section 2-314 of the UCC provides the definition for merchantability of goods, which states that (among other things) merchantable goods must be “fit for the ordinary purpose for which such goods are used” and “adequately contained, packaged, and labeled”. (See UCC §2-314 (2)(c), (2)(e).)

The elements of a breach of implied warranty of merchantability are that goods sold were unreasonably dangerous for use to which they would ordinarily be put or for some other reasonably foreseeable purpose. Plaintiff then has to show that the unreasonably dangerous condition existed when the goods left defendant’s hands. These types of claims differ from negligence in that they focus on the dangerous condition of the product itself, absent adequate warnings regarding its use, rather than the actions of the producer/seller.

So why would a plaintiff bring a claim for both negligence and breach of implied warranty of merchantability? When negligence is pled, there is a basis for broader discovery and admissibility of evidence in areas that may not be admissible under an implied warranty claim. Because, as explained above, a negligence claim requires proof of fault on the part of the manufacturer, evidence of due care in the manufacturing and assembly processes, along with the testing, inspection and/or quality control processes of the food product will be discoverable and potentially admissible. It is important also to note that the defenses of contributory negligence and/or assumption of the risk, which are defenses to negligence, do not apply to a breach of implied warranty of merchantability claim.

Lastly, if only the food product supplier is named as a defendant, the best option for the supplier can be to bring in the manufacturer of the product as a third-party defendant for contribution and/or indemnity, if the facts allow. For example, in a case where a supplier receives pre-packaged food from the manufacturer, a claim for indemnity can be especially strong. This will have the effect of shifting the liability from the supplier to the manufacturer, regardless of whether the claim is a negligence or breach of implied warranty of merchantability claim, or both.

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