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From Products Liability Law Daily, June 10, 2014

Raw oysters were not unreasonably dangerous and suppliers adequately warned diner of risks

By Pamela C. Maloney, J.D.

A diner who developed a blood infection after eating raw oysters could not pursue product liability defect claims against three seafood suppliers that had complied with government standards governing the handling of seafood and had provided adequate warnings of the risks of consuming raw summer oysters, the Tennessee Court of Appeals ruled, reversing the trial court on the issue of failure to warn. The appellate court did uphold the trial court’s conclusion that the diner’s products-liability and breach-of-implied-warranty claims against the restaurant raised questions of fact that could not be resolved pursuant to summary judgment motions by either party (Bissinger v. New Country Buffet, June 6, 2014, Cottrell, P.).

Background. The diner, Randall Bissinger, developed vibrio vulnificus primary septicemia after eating raw summer oysters at New Country Buffet, an “all you can eat” restaurant. The diner also suffered from hepatitis C and cirrhosis of the liver. The diner filed a products liability and negligence complaint against the restaurant, alleging that his blood infection was a result of eating contaminated oysters. Three seafood suppliers—Gulf Pride Seafood, Leavins Seafood, Inc., and Bon Secour Fisheries, Inc.—were named as possible third-party defendants. The diner’s executor, who was substituted as the plaintiff following the diner’s death, moved for summary judgment on all claims which included common-law negligence, negligence per se, failure to warn, and breach of the implied warranty that the oysters were reasonably fit for human consumption. The suppliers and the restaurant also moved for summary judgment on all claims.

In reliance on persuasive authority, the trial court held that oysters containing vibrio vulnificus were not adulterated as a matter of law and were not defective or unreasonably dangerous. Based on this finding, the trial court granted the suppliers’ motion on all claims, except for the claim based on the adequacy of their warnings about the dangers of ingesting oysters. The trial court also allowed the diner’s claims against the restaurant to stand.

Sealed container immunity. In response to the products liability claims against them, the suppliers asserted, and the trial court granted, immunity from liability under the sealed container doctrine as set forth in the Tennessee Products Liability Act (Tenn. Code Ann. §29-28-106). The appellate court rejected the trial court’s application of the defense, concluding that the oyster suppliers were not entitled to immunity under the doctrine because suppliers are “manufacturers,” not sellers, according to the applicable statutory definitions, and because a living oyster’s shell was not a “sealed container” as contemplated by the doctrine.

Compliance with government standards. Although not entitled to immunity under the sealed container doctrine, the suppliers were entitled to the statutory presumption that compliance with federal or state standards gave rise to a rebuttal presumption that the product was not in an unreasonably dangerous condition. The record contained ample proof of compliance by all three suppliers with the state and federal statutes and regulations governing the commercial handling of fresh seafood. The diner’s executor did not dispute the compliance issue but, instead, argued that despite the presumption, the oysters were in fact in an unreasonably dangerous condition under Tennessee’s Food, Drug, and Cosmetic Act, which requires that food be free from contamination and must not be adulterated. The appellate court rejected this argument on the basis of overwhelming evidence that vibrio is naturally occurring, that some level of vibrio can be found in almost all oysters, and that vibrio is not dangerous to most people. The appellate court also agreed with the findings of other courts that had considered the question and concluded that oysters containing the naturally-occurring bacteria are not defective or in a defective condition. Thus, the appellate court affirmed the trial court’s grant of summary judgment to the suppliers on the product liability claims

Implied warranty. The diner also alleged that the suppliers breached an implied warranty that the oysters were merchantable and that the warnings provided were not sufficient. The court acknowledged that there was very little factual difference between a product that was defective under TPLA and one that was not merchantable under the state’s commercial code. However, because warranty claims sound in contract rather than in tort, it was not necessary for the diner to show negligence; he need only show a breach of the implied warranty that the oysters were wholesome and fit for human consumption. Although there were no Tennessee cases that specified the standards a court should apply to determine whether food is merchantable, other states have adopted one of two tests for use in analyzing this question: the “foreign natural test” and the “reasonable expectation test.” In applying both tests to the facts at hand, the court determined that because vibrio vulnificus was naturally occurring, appears in most shellfish and in almost all oysters to some degree, and reasonably can be expected to be found in live raw oysters, the oysters supplied in this case were merchantable under both tests.

Failure to warn. Included in the diner’s implied warranty claim was a claim that the suppliers failed to adequately warn that death was a potential risk. The suppliers acknowledged that because the consumption of raw summer oysters, such as the ones consumed by the diner, could be dangerous to consumers who suffer from certain medical conditions, they had a duty to warn these individuals of the danger of consuming raw oysters. However, according to the suppliers, they furnished specific warnings directed towards those consumers with a medical condition that placed them at risk and insisted that “they had no reason to believe that such individuals would be so foolish as to ignore those warnings.” The evidence showed that the warning tag attached by the suppliers to each bag of oysters complied with federal regulations and were, therefore, sufficient to meet the reasonable standard of care and satisfy the implied warranty of merchantability. Furthermore, because the suppliers had no ability to directly warn customers of the restaurants that bought oysters from them, they could not be held to have breached a duty to warn the end user of these products.

Restaurant owner’s warning duty. The court did find that there was no evidence in the record that the restaurant owner passed along to its customers the suppliers’ warning about the dangers of eating raw oysters. Finding that the danger of eating raw oysters was not open and obvious and that the extent of the danger was not well known, the appellate court upheld the trial court’s finding that the restaurant was not entitled to a dismissal of the diner’s failure-to-warn claims against it.

Other claims against restaurant owner. The appellate court also determined that the restaurant owner was not entitled to the statutory presumption that because it complied with state and federal laws and regulations regarding the maintenance, storage, sale, and distribution/display of the oysters, the oysters it served were not unreasonably dangerous. The burden was on the restaurant owner to demonstrate compliance, not on the diner to show the restaurant owner’s noncompliance. However, the restaurant owner failed to provide any evidence that it had fully complied with all applicable federal and state standards in this case.

Furthermore, the restaurant could not be relieved of liability as a matter of law for breach of the implied warranty of merchantability. Although the same legal principles (discussed above) that supported the court’s finding that the suppliers had not breached this warranty applied to the restaurant owner, the court added that if the restaurant had been negligent in its handling of the oysters, its conduct could have allowed the bacteria to proliferate, rendering the oysters unfit for consumption. Reports by health inspectors that the restaurant failed to meet the temperature requirements could be sufficient to establish that the oysters consumed by the diner had been adulterated and, thus, were unfit for consumption and unreasonably dangerous. Therefore, the restaurant owner was not entitled to summary judgment on the diner’s products-liability or breach-of-implied-warranty claims.

The case number is M2011-02183-COA-R9-CV.

Attorneys: Kathryn Elaine Barnett (Morgan & Morgan, P.A.) for Aaron Bissinger. Warren Maxey Smith (Smith & Tomkins) and David Jackson Sneed (David J. Sneed & Associates) for New Country Buffet, Gulf Pride Seafood of Franklin, LLC, Leavins Seafood, Inc., and Bon Secour Fisheries, Inc.

Companies: New Country Buffet; Gulf Pride Seafood of Franklin, LLC; Leavins Seafood, Inc.; Bon Secour Fisheries, Inc.

MainStory: TopStory DefensesLiabilityNews WarningsNews SCLIssuesNews FoodBeveragesNews TennesseeNews

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