Analyzing Negligent Liability Through E. Coli laced Cheese

Chief among my many, many odd pastimes is trolling the FDA’s website for product recall announcements.  I don’t do this for any pecuniary reason, rather I just like to read and get outraged over how companies can continue to try and cut corners simply to make a few extra bucks.  And then revel over the irony that the subsequent recall is probably costing them a lot more money in lawsuits and lost product sales.  Also, I’m friends with a number of hypochondriacs and I like to tell them that the cheese they just bought might give them E. coli.

Granted, not all companies who have to recall products end up in their situation out of greed.  Sometimes it can be something as simple as an honest processing mistake that goes unchecked and ends up multiplying many times over.  The Bravo Farms and Costco case I linked to above could very well be one of these situations.  However, even if it is, it likely won’t do anything to help stem the resulting outbreak of negligent liability lawsuits that will inevitably follow in the aftermath.  People will be lining up to sue the manufacturer of the recalled cheese, Bravo Farms.  But what about the retailer, Costco?  Well, they won’t be free from liability either.

Tort lawsuits based on negligent liability work under the principle of duty; specifically who has a duty and whether they breached it.  Suing under negligent liability essentially means that the plaintiff is claiming that because of the defendant’s carelessness, the plaintiff was harmed.  In order to successfully sue anyone for being negligent, the following five elements must be shown to have existed: Duty, breach of duty, cause, cause-in-fact, and damages.

I know – I just threw a lot of legalese at you; but really, negligent liability lawsuits are a lot simpler than they might sound.  Rather, explaining the legal principles behind them is simple – it’s proving and winning or defending against one that is very complex and expensive.

Anyway, back to point at hand.  Duty or duty of care basically means whether the alleged negligent perpetrator had a responsibility to the victim.  Breaching of duty means that the perpetrator failed to prevent the wrong which caused the victim to be harmed.  However, the cause must have been “cause-in-fact” by the perpetrator, meaning that it had to have been a type of harm that was an objectively foreseeable consequence to the perpetrator.  Finally, the victim must have suffered some sort of monetary, physical, and/or emotional damage from the perpetrator’s negligence.

Where it can get confusing/ridiculous/infuriating is when one realizes that under this seemingly sound legal doctrine, negligent liability can be imposed for almost anything.

As you can probably tell from my explanation, it seems pretty clear that Bravo Farms can be sued.  They produced the cheese and therefore had a duty to their customers to create a sanitary and safe product.  But they failed to do so by allowing E. coli-infected products to be sold and eaten which could cause customers to become sick.  This is not only a foreseeable consequence, but if anyone eats it, will probably be damaged in terms of monetary loss from medical bills and loss work, not to mention the physical and mental toll E. coli can have on a person.

But what about Costco? Why would they be liable? After all they just sold the product that Bravo Farms produce?

Well, that’s exactly why Costco can be held liable.  As a retailer of consumable goods, it can be argued that Costco had a duty to its customers to ensure that the products they listed for sale are safe.  Though one could argue that there’s no way for Costco to have known the cheese was tainted, an equally convincing argument could be made that if a company plans to resell another’s product, than that company should take steps to not only understand the product, but ensure that it is safe.

A lawyer would probably say that Costco had a duty to utilize some kind of screening safeguard to check safety of each food product that came in or even conferred with Bravo Farms itself.  Now you might be thinking that Costco couldn’t have known that something was up because Bravo Farms didn’t tell them, and that alone should make Bravo Farms entirely liable to Costco.  Well, you’d probably be right; Costco might have a negligent liability cross claim against Bravo Farms, too, depending on the contract between them.

However, ultimately the lawsuits will probably just be limited to customers suing Bravo Farms and Costco.  A lawsuit between the companies is probably unlikely since, barring some horrible media firestorm against the companies, Costco really has no reason to sour its relationship with a major product provider.  They’re a business after all and don’t make their money from lawsuits, but rather from selling things like uncomfortably large packs of toilet paper.