by Christian Stegmaier
cstegmaier@collinsandlacy.com
To encourage safe practices, the law imposes liability on food service establishments that serve adulterated food. Causes of action for adulterated food in South Carolina include:
Warranty of Merchantability
The Uniform Commercial Code is a set of rules designed to simplify and modernize the law governing the sale of goods, including food. South Carolina has codified the UCC in its 1976 Code of Laws.
The UCC imposes for the sale of goods where the seller is a merchant, an implied warranty that goods – including food – are merchantable.
Merchantable means the goods are fit for their ordinary purpose and are at least of average quality. For food to be merchantable, it must be fit for human consumption. Inappropriate or foreign objects will render food unmerchantable. Food with harmful bacteria or viruses will render food unmerchantable. Food that is spoiled or undercooked is unmerchantable
Tests for merchantability regarding foreign objects:
-Foreign/natural test: If the object is foreign – that is, unrelated to the components or ingredients of the product – the warranty is breached.
-Reasonable expectation test: Examines whether an object found in food ought to have been anticipated by the consumer.
The trend is towards the Reasonable Expectation test in most jurisdictions.
The warranty of merchantability is implied in all contracts – unless explicitly disclaimed – for the sale of goods made by a merchant. This warrant renders manufacturers, distributors, and sellers virtual insurers that the food is safe to eat.
Proof of liability in warranty cases hinge upon demonstration that the food product was adulterated and the cause of the alleged illness.
Warranty claims require demonstration of privity of contract (i.e., a contractual relationship between the plaintiff and the defendant).
Strict Liability
Suit in tort rather than in contract. To sue in products liability, a plaintiff must prove three elements:
-The defendant sold a product in a defective condition;
-The plaintiff was injured; and
-The injury was caused by the defect.
There is no privity of contract requirement in strict liability claims.
In strict liability claims, food is defective if it is adulterated, contains foreign or unexpected objects; or is otherwise not fit for human consumption.
Negligence
Additional basis for suit. Involves demonstration of proximately caused damages due to breach of duty. Can include allegations of negligence per se due to violations of Health Code/Food Service Establishment Regulations.
This post does not constitute the giving of legal advice or the creation of the attorney-client relationship. For questions you may have regarding this issue, please contact counsel in your jurisdiction.
