December 19, 2009
By: David K. Jaffe
When a consumer contracts food poisoning as a result of eating spoiled or contaminated food in Connecticut , who does a consumer seek to hold accountable, and under what theory of liability? This article will give a brief summary of food poisoning cases over the years, under different theories of liability.
Food poisoning cases are not new. A survey of case law across the country show many such cases arising as far back as the nineteenth century. In 1869, a case in Michigan  was brought for the balance remaining unpaid on the price of the carcasses of three hogs sold to be used as food in a lumber camp. The defense was that one of the carcasses was unsound and unfit for use. In 1897, a meat purchaser filed an action in Illinois against a retail meat dealer after the pork she bought from the dealer was unwholesome and unfit for use. In 1918, a consumer in New York brought an action to recover damages for personal injuries from the consumption of unwholesome and poisonous ice cream sold to him by the retailer.
Breach of Warranty: Privity of Contract
In 1937, a Connecticut consumer filed an action against the company alleging a breach of warranty and negligence after she was injured by a nail embedded in cream cheese she had consumed. The consumer was a boarder, and the owner of the house had bought a package of cream cheese from the company. The cream cheese was not made by the company, but rather the manufacturer sold the cream cheese to the company. The company's defense was that warranty, whether express or implied, required privity of contract between the parties. Without a contract, either express or implied, there was no warranty. The court dismissed the breach of warranty claim because the consumer was not in privity with the company that sold the cheese.
In 1938, The Connecticut Supreme Court reached a similar result. The plaintiffs ate liverwurst purchased by the husband from the retailer, and both became ill from small pieces of glass contained in the meat. The plaintiffs alleged breach of warranty of fitness for consumption and negligence, but the trial court, after finding no evidence of negligence, removed that issue from the jury. The trial court also directed a verdict for the retailer as to one of the injured parties after finding no privity of contract. The case was upheld on appeal.
In a 1948 case, a patron brought suit alleging negligence, claiming to have been poisoned by food purchased at a restaurant. The customer had consumed a corned beef sandwich on the premises, and his later illness was diagnosed as food poisoning. At the trial, the court directed a verdict, stating that there was no evidence of negligence, which judgment was affirmed on appeal.
Uniform Sales Act
The Connecticut Supreme Court concluded that, under the Uniform Sales Act, food sold in a restaurant for immediate consumption was a service, not a sale. The Court held that there were no warranties in the service of food because the transaction was not for the sale of food but was for the services rendered with food being a mere incident to that service.  These decisions are no longer applicable because Connecticut has adopted the Uniform Commercial Code.
Uniform Commercial Code
Under the Uniform Commercial Code, "the serving for value of food or drink to be consumed either on the premised or elsewhere is a sale."  "This provision was adopted in response to those cases under the Uniform Sales Act which had concluded that the provision of food or drink to be consumed on the premises, as in a restaurant, did not constitute a sale within the meaning of that statute."  In an action brought under the Uniform Commercial Code in 1963, where a customer broke a tooth after taking a bite of a grinder sandwich, the court held that the grinder sold was of such hardness that it was not reasonably fit for human consumption and the vendor was held liable for its breach of implied warranty under Conn. Gen. Stat. § 42a-2-315.
Strict Liability in Tort
In a 1970 case, a restaurant patron had consumed an egg salad sandwich, after which he became violently ill with salmonella poisoning which required extended hospitalization. The court held that a cause of action based on strict tort liability was stated by the complaint, where the restaurant operator was engaged in the business of selling the sandwich, which reached the consumer without a change in condition, and was defective condition and unreasonably dangerous to the plaintiff. The court also concluded that the sales provision of the Uniform Commercial Code did not preempt the doctrine of strict liability in tort.
Connecticut's Product Liability Act
Connecticut's Product Liability Act was enacted in 1979. Rather than abolishing previously existing rights, the Act merges the previous varied common-law theories into one cause of action. The various theories set forth in the statute include strict liability in tort, negligence, and breach of warranty, both express and implied.  The Act is the "exclusive remedy for claims falling within its scope." Thus, common-law counts of product liability will be stricken as not within the purview of the Act. However, separate counts alleging negligence and implied warranty of merchantability have been upheld as falling within the definition of a "products liability claim."
The preparation of food by a restaurant is a product for the purposes of the Act. Prior to the enactment of the Act, the Connecticut Supreme Court had decided that food served at a restaurant was a product for the purposes of strict liability, and that a restaurant was in the business of selling products. In a case brought under the Act, a superior court has ruled that a hamburger prepared by a restaurant and sold to a customer was a "product" within the coverage of the Act. The customer suffered serious injuries as a result of swallowing a hard piece of plastic while eating the hamburger.
Elements of Proof
In actions involving liability for the sale or serving of unwholesome food, the plaintiff has the burden of proving that the food was unwholesome and that the injury or illness resulted from eating it. A prima facie case of liability for selling unfit food is made out by proof that it was diseased and may caused the injury.
Proof of proximate cause may be problematic. The issue of proximate cause is ordinarily a question of fact, but in some circumstances, expert testimony is required to establish causation. In a lawsuit against the restaurant for food poisoning resulting in hepatitis, the defendant filed a summary judgment motion, assert that the plaintiff failed to establish causation. At his deposition, the plaintiff's physician testified that he could not state with a reasonable degree of medical probability that the plaintiff's meal at the restaurant caused the plaintiff's hepatitis virus.  The court denied the motion for summary judgment, reasoning that the Connecticut appellate courts had not decided whether the effect of consuming contaminated food upon the human body was within the common knowledge of lay witness or whether expert testimony was needed to establish causation,
In a product liability claim, a plaintiff may recover compensation for "harm," which includes personal injuries and wrongful death. A plaintiff was awarded damages on a product liability count, in which the customer alleged he suffered injuries and losses as a result of pricks to the inside of his mouth from a broken-off piece of a hypodermic needle in a breakfast sandwich he purchased at a restaurant. The superior court held that the restaurant put a defective product into the stream of commerce by which the customer was injured and that the incident touched off anger, depression, and paranoid feelings that caused the customer to need the help of a psychologist, for which he was awarded damages.
The Act provides that the plaintiff may recover punitive damages if the injury resulting from the product seller's "reckless disregard for the safety of product users, consumers or others who were injured by the product."  A customer's product liability action in which she sought punitive damages against retail sellers of cheese, who also manufactured and distributed it, was able to withstand the seller's motion to strike where the complaint alleged that the seller's omitted a known safety procedure and were in a position to have knowledge that the cheese was defective and likely to cause serious harm.
Punitive damages were also held proper in a case where the injured person ingested blueberry bread which did not list nuts as an ingredient. The injured person was allergic to nuts and suffered anaphylactic shock. The court held a jury could find that the manufacturer had knowledge of the specific and substantial of danger from improper labeling products containing nuts and that it acted in reckless disregard for the safety of its consumers when it failed to remove the incorrect label.
Although food poisoning cases have been among the earliest reported "products" cases in many states, the prevalence and impact of food poisoning litigation has increased with advances in technology and the continuing number of high-profile outbreaks of E. Coli and other pathogens. Although these cases have been brought under many theories, today in Connecticut food poisoning cases typically fall within the Product Liability Act.
a graduate of Harvard College and the Washington College of Law, clerked for Chief Presiding Judge Joseph Dannehy on the Connecticut Appellate Court. She is an associate at Brown Paindiris & Scott, LLP, where she practices in the area of civil litigation, with an emphasis on civil rights cases (including police misconduct), medical malpractice, products liability and personal injury.
1. See generally Jane M. Draper, Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5 th 1; Jane Massey Draper, Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R. 5 th 1 ; Jane M. Draper, Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R. 5 th 189 ; and Kristine C. Karnezis, Liability of packer, food store, or restaurant for causing trichinosis, 96 A.L.R.3d 451.
2. See generally 35 Am Jur 2d, Food §§ 84-106.
3. See Hoover v. Peters, 18 Mich. 51 (1869).
4. See Wiedeman v. Keller, 171 Ill. 93 (1897).
5. See Race v. Krum, 222 N.Y. 410 (1918).
6. See Fargot v. Great Atlantic & Pacific Tea Co., 4 Conn. Supp. 447 (1937).
8. See Borucki v. MacKenzie Bros. Co., 125 Conn. 92 (1938).
10. See Albrecht v. Rubinstein, 135 Conn. 243 (1948)
12. See, e.g., Albrecht v. Rubinstein, 135 Conn. 243 (1948); Lynch v. Hotel Bond Co., 117 Conn. 128 (1933); Merrill v.Hodson, 88 Conn. 314 (1914).