When is a manufacturer of food products responsible for an injury caused by the food we eat in Washington?

Posted by Scott A. Staples | Aug 26, 2019 | 0 Comments

It's an unfortunate fact of life.  Foods that we consume will, on occasion, contain something that isn't supposed to be there.  Sometimes it's just gross.  But sometimes is causes real, lasting injuries to the consumer.  As in most legal topics, there's a lot of nuance that maybe isn't conducive to a succinct blog post.  But I'll discuss here the general requirements for whether a food injury can lead to a viable legal claim for compensation.

To start with, Washington courts over a century ago recognized an “implied warranty of fitness for human consumption.”  Manufacturers then were held to have a duty to consumers to provide food that was “wholesome and fit for human consumption”, and to provide adequate protection from foreign objects in their products.  The law evolved over time to focus on the standard of whether the food was “unreasonably dangerous”, and ultimately further to the standard of “not reasonably safe”, as contemplated by the ordinary consumer.

This is where Washington law stands today with regards to the liability of manufacturers of food.  Whether a person injured by food can make a successful claim against the manufacturer is governed by the “consumer expectations test.”  A food is defective/not reasonably safe when it is more dangerous than a hypothetical ordinary, reasonable consumer would expect.  Who is the ordinary, reasonable consumer in this test?  Usually a jury gets to decide that, if the parties to a lawsuit of this type can't resolve their differing interpretations and settle the case.      

Cases decided by Washington appellate courts along the way have clarified some specific rules in this area.  A product can fail the consumer expectations test (and thus a manufacturer can be liable for injury) if an object contained in the food is “natural” to the product but still would be unexpected by a reasonable consumer (like a jagged piece of crab shell in a crab melt sandwich).  Courts have indicated that a restaurant that “manufactures” a dish will not fail the test merely because the dish contained trace amounts of other foods served by the restaurant (think an allergic reaction to traces of peanuts in a dish that itself did not call for or contain peanuts; in this vein, consumers will note that many restaurants now warn about ingredients that are used in specific dishes or are used in the kitchen in other dishes that are common allergens, to try and head off claims that although the product might not be inherently unsafe, there was a failure to warn of potential allergens that made it unsafe). 

With regards to mere sellers (as opposed to manufacturers) of food products, they are generally not responsible for harm caused by a food they didn't make unless: they themselves were negligent in some way, such as failing to inspect a product for dangers when they had notice/reason to do so; the seller makes an express promise to purchasers about the product's safety, or; the seller intentionally conceals known dangers of the product.  There are some other exceptions to this rule as well involving whether the seller and manufacturer are part of the same larger company, the seller markets the product under its own brand name, etc.

The upshot of all this can be summarized by these (non-exhaustive) examples: 

  • If you break your tooth on a rock contained in a candy bar you bought at the grocery store, the manufacturer of the candy bar is likely going to be found liable because a candy bar with rocks in it is probably going to fail the consumer expectation test. The grocery store is not going to be found liable, unless it had reason to suspect if should be inspecting the candy bars and warning of rocks contained in them (say, like a manufacturer bulletin to the store month prior warning the store to inspect the bars or pull them from the shelves). 
  • If you choke on a chicken bone contained in a chicken salad sandwich you purchased at a restaurant, the restaurant may fail the consumer expectations test and/or be found negligent if they made the chicken salad themselves from whole chicken parts. If the restaurant purchased the chicken salad pre-made from a manufacturer, the manufacturer of the chicken salad may be found liable because chicken salad with bones in it is probably going to fail the consumer expectation test.  The restaurant is less likely to be found liable, unless it had reason to suspect it should be inspecting the chicken salad and warning of bones contained in it.

If you have an allergic reaction (peanuts) to a salad made by a restaurant, the situation will be (as it usually is) very fact-dependent.  If the restaurant was negligent in some way (such as by serving peanut-contaminated food without adequate warnings to customers), or violated a warranty/promise made about the dish (“contains no nuts or nut residue”), then they may be found liable.   

About the Author

Scott A. Staples

Scott Staples came on board in 2006 as a clerk during law school, and joined the firm as an associate attorney in 2007. He was made a shareholder in the firm in 2010. Scott graduated, cum laude, from Washington State University Vancouver with a BA in English, and obtained his Juris Doctorate from Willamette University College of Law, with cum laude honors there as well. He has successfully represented clients in a variety of different types of injury cases, including auto collisions, premises liability, animal attacks, watercraft accidents, and construction site injuries. He has appeared, and won, before the Washington State Supreme Court (Weismann v. Safeco, 2012). Scott has volunteered time for the past several years at the Clark County Volunteer Lawyers Housing Justice Project. He has previously served on the new member and membership committees for the Washington State Association for Justice (WSAJ), and has acted as chair and co-chair of the WSAJ Clark County Roundtable. He is a member of the Washington and Oregon State Bar Associations, WSAJ and OTLA (state trial lawyer organizations), and is admitted to practice in all state and federal courts in Washington and Oregon. Scott was born and raised in Vancouver, attending Vancouver public schools and graduating from Hudson's Bay High School. He enjoys playing recreational basketball and softball, skiing, and spending time with his wife and three children.


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