Thursday, December 29, 2011

Holiday Season Food Law (Part IV): The food poisoning cases

(This is the fourth post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See also part I, part II, and part III). 

As Christmas is behind us and New Year's Day is around the corner, it seems appropriate to begin bringing this series to a conclusion by talking about food that just flat out makes you sick. 

This Saturday evening, people around the world will ring in 2012 with all sorts of food and beverage, and undoubtedly some of them will just become sick for no apparent reason (other than maybe imbibing a bit too much).  There is another line of cases in South Carolina where the lawsuit relates to food that just made someone fragments of glass, no exploding bottles, no animal carcasses in the food.  The plaintiff just eats/drinks something and gets food poisoning of some variation.  If you are one of these unfortunate individuals, this post is dedicated to you.

In Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641 (1940), a man became sick after drinking a soft drink he believed contained some kind of poisonous substance.  Only after analysis by some chemists was it determined that the soft drink contained copper sulphate (which apparently is used by farmers to protect crops from rust).  7 S.E.2d at 642.  The plaintiff sued for negligence (in bottling of the soft drink, inspection, etc.), and the jury awarded $2,000.  Id.  On appeal, the defendant argued (1) there was no evidence it bottled the drink or that it contained the substance at the time of bottling, and (2) there was no evidence from which a jury could conclude it was negligent.  Id. at 643.  In a detailed opinion, the court pointed out that the only evidence of negligence was a violation of the applicable Pure Food Statute at the time (i.e., making it negligence per se if there is some poisonous or deleterious substance in the food).  Id.  It did not matter that the plaintiff failed to plead the statute in his Complaint, and "neither knowledge of the contamination nor negligence in fact is a material element of the offense."  Id.  It is negligence per se under the law, and this alone is sufficient for consideration by the jury.  Id. at 645.  However, the court reversed the case and remanded for a new trial.  Id. at 645-46.  Why?  Because the trial judge excluded testimony by the defendant the instance at issue was the only time that copper sulphate had been found in the soft drink bottled by the defendant.  Id. at 646.  In short, if the plaintiff can get the case to the jury by just showing violation of the statute, the defendant also should be able to offer testimony relevant to the standard of care, and failure to allow this testimony required a new trial.

Yummy processed and potted meat.  Love it.  My dad's generation sure did, as I often heard stories of "eating Vi-enner sausages in the field" while growing up.  I will pass, thank you very much (especially after reading Upton Sinclair's The Jungle in my high school history class).  Nevertheless, there are three South Carolina cases I have found involving potted/processed meat, and reading them is pure entertainment.  

Housand v. Armour & Co., 173 S.C. 268, 175 S.E. 516 (1934) involved consumption of "oil sausage" sold in 50-pound cans and retrieved via "an old fork which hung from the counter" in the retail shop."  175 S.E. at 517.  This is a strange case in which the "defendant" Armour was found to not actually be the right defendant, but they answered and went to trial anyway.  Ultimately, the judgment against the defendant corporation was reversed based on lack of evidence of negligence and improper expert testimony.  Id. at 518.  The court affirmed the judgment against the local defendants based on how they handled the meat (i.e., not keeping it refrigerated).  Id. at 518-20.  Hollis v. Armour & Co., 190 S.C. 170, 2 S.E.2d 681 (1939) also involved oil sausages, and the offending sausages in this case were sold from cans that had rusted.  The concept of preemption rears its head in this early case, as one of the defendant's arguments was that the State Pure Food Statute interfered with federal acts and regulations.  2 S.E.2d at 684-85.  The court disagreed, and it also believed the plaintiff had adequately pled a violation of the State Pure Food Statute so as to sustain the $1,500 award by the jury to the plaintiff.  Id. at 685.  Finally, Boylston v. Armour & Co., 196 S.C. 1, 12 S.E.2d 34 (1940) involved a ham that had a "bluish-greenish cast" that is "not unusual" in a cooked, smoked ham.  12 S.E.2d at 37.  (Uhhh...okay).  Contrary to the holding in Hollis, the Boylston court reversed the trial court and remanded the case for a new trial on grounds that the applicable State Pure Food Statute did not apply; it only applied to manufacture or sale or offer for sale of food within the state, and there was evidence that the meat at issue was prepared and sold out of state.  Id. at 38. 

Poor Armour.  These cases are a mixed-up potted mess, and reading them can be exhausting.  The above summary does not do them justice.  If you have an interest in potted meat cases, I encourage you to read them for yourself.

Last but not least, Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969) involved a three-year-old child who became sick after drinking a soft drink that contained something "dark in color and slick and slimy to the touch."  A pathologist determined that the substance was yeast, and he testified that certain yeasts can cause certain diseases.  Id. at 582, 167 S.E.2d at 574.  The problem was that the plaintiff's doctor testified there had been a rash of viruses at the time, and he could not say whether the plaintiff's sickness was from the virus or from the yeast in the soft drink.  Id. at 583, 167 S.E.2d at 574.  Although the court recognized a violation of the Pure Food and Drug Act in effect at the time constituted negligence per se, the plaintiff still had to show proximate causation. 
We have held that where the cause of plaintiff's injury may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has failed to carry the burden of establishing that his injury was the proximate result of defendant's negligence.
Id. at 575, 167 S.E.2d at 584.  Based on this law, the court reversed the judgment because plaintiff failed to prove proximate causation.

This is the last group of cases in this series.  In my next (concluding) post for this series, I will do my best to synthesize my blogs on food and beverage case law and bring some "order" to them.

Happy New Year!

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