20 min read
This is the first thing that comes to mind when farmers think about the legal implications of a food safety incident. In the legal lingo, this type of case is often called a “personal injury” case. In fact, you might see billboards advertising the services of lawyers by screaming out the phrase, “Have you been injured?” Their clients may have slipped on an icy sidewalk, been hit in an auto collision, lost a finger in a farm implement, or suffered a different type of injury.
Perhaps because of those dramatic advertisements and the media stories of million- dollar pay-outs, personal injury lawsuits (also called “tort claims”) don’t have the finest reputation. That may not be entirely deserved. The premise behind a personal injury lawsuit is this: if one person acts irresponsibly and a second person gets hurt as a result, the first person should compensate the injured person for their damages.
Oftentimes this all gets played out through the injured person’s health insurance company. Through the legal concept of subrogation, the health insurance company has a right to file a lawsuit on the insured’s behalf to recover any expenses paid out. In other words, the insurance company can sue the farm even if the injured person doesn’t want to pursue the matter!
Not every person who suffers an injury—or their insurance company—gets money for it. Although the line between eating contaminated food and becoming sick may be straightforward, the line between getting sick and winning a lawsuit against the source is not.
Food poisoning cases can be incredibly complex, time consuming, and costly with very uncertain outcomes. They often involve multiple claims or ways to argue that the source is liable or responsible for compensating anyone who’s injured. For our purposes, we’ll focus on the two main ways that farmers might find themselves liable: negligence and strict liability.
Negligence is a legal concept that basically states, “You owe a duty to act with reasonable care not to get others hurt. If you act with less care than the average person in your circumstances would act, and someone gets hurt as a result, you are at fault. You must then pay for the resulting damages.”
The message for farmers is this: Farmers owe their customers a duty to act with reasonable care, or like the average farmer would act, in each circumstance to prevent the food they sell from being contaminated. If someone gets sick and a lawsuit ensues against the farmer, the court will determine whether the farmer is at fault by asking: did the farmer act reasonably in these circumstances?
Farmers who follow a food safety plan—and, better yet, abide by Good Agricultural Practices (GAP) and even the Food Safety Modernization Act (FSMA)—have a better chance of showing they acted with reasonable care This begs the question: how does an average farmer act in these circumstances?
Much time and money will be spent determining whether the individual farmer in question met that standard. There is no one-size-fits-all answer to this question, as each case will depend on the specific facts and circumstances. Ultimately, it’ll be up to a jury to decide whether the farmer acted with reasonable care or was negligent and thus at fault. The farmer’s best defense may be the implementation of a food safety plan.
Implementing an effective food safety plan—and perhaps following GAP standards or complying with FSMA rules—is what an average farmer would do, right?
Whether this was true in the past, it’s becoming the trend as farmers increasingly take food safety more seriously. What does this mean? As more farmers become GAP certified, or at least follow GAP standards, and comply with the FSMA rules, the standard of care that a farmer will be held to in a personal injury lawsuit might increase. In other words, courts might turn to GAP standards and FSMA rules in a negligence case when determining whether the farmer acted reasonably. This is all the more reason for farmers to pay attention to these standards, regardless of whether they are required.
The short answer is no. The standards in the FSMA Produce Safety Rule are minimum legal requirements or standards that fresh produce growers must adhere to, unless an exemption applies. To learn more about whether your farm must comply with the FSMA Produce Safety Rule or whether an exemption applies, complete the flowchart in Appendix C.
For farms that are subject to the FSMA Produce Safety Rule (i.e., no exemption applies), it’s up to them to demonstrate that they are complying with the FSMA standards, which include standards for agricultural water; biological soil amendments; health and hygiene; domesticated and wild animals; equipment, tools, and buildings; and training for supervisors and staff. While it’s not legally required, having a farm food safety plan in place along with documentation showing that the FSMA standards are being followed is generally the best way to show that the farm is in compliance. Maintaining records and documentation is essential!
Whereas FSMA is government driven, GAP standards are industry driven. There are numerous GAP-certification agencies out there—including the USDA through its Good Agricultural Practices & Good Handling Practices (GAP&GHP) audit verification program. Each GAP-certification agency has a relatively different set of food safety standards. Adopting and implementing a food safety plan with standard operating procedures (SOP’s) is generally required for GAP certification; however, the specific standards and procedures required can vary across certifiers.
It’s entirely up to the produce buyer to decide which GAP certifier to go through. The unfortunate result is that a farmer may need multiple GAP certifications to sell to different buyers, each with a different set of standards. In addition, just because a farm is complying with FSMA Produce Safety Rule standards does not necessarily mean they will meet the GAP standards of a particular certifier and vice-versa.
Efforts are underway to harmonize the GAP standards and to make the harmonized GAP standards compatible with the FSMA standards. The Produce GAPs Harmonized Food Safety Standards were released in 2011, out of an initiative by stakeholders to “harmonize” 14 of the major GAP standards. The USDA has since incorporated the Produce GAPs Harmonized Food Safety Standard into its GAP/GHP audit verification program.
In addition, USDA teams are working to make the GAP/GHP standards used in the USDA’s audit program FSMA compliant. If and when that happens, it will be good news for farmers: they can rest assured that if they pass a USDA GAP/GHP audit, they will generally be complying with the FSMA Produce Safety Rule standards.
Bottom line, FSMA likely won’t eliminate industry-imposed programs for food safety. Even if a farm complies with FSMA, it may still need to pay for and go through the process of obtaining one or more GAP certifications to sell to certain buyers.
To learn more about GAP:
To learn more about FSMA:
To learn more about local workshops and up-to-date resources on GAP, FSMA, and on-farm food safety in general, contact your local extension agent. If you’re in Washington, Idaho, or Montana, reach out to the following groups:
If a farm is legally required to comply with the FSMA rules or other product- specific regulations under the state or local food code (i.e., no exemptions or exceptions apply), the farm will certainly be held to these standards in a negligence case. That’s because under the legal doctrine of “negligence per se,” a court will automatically conclude that the farmer acted negligently if they violated a relevant food safety law that they were required to follow. This makes sense as, generally speaking, violating the law is not exactly acting with care.
When a negligence lawsuit ends in favor of the injured person, they may receive money for their medical bills, lost wages, and future loss of earning potential, among other losses. However, in many states, the farmer can reduce or entirely eliminate the damages if the farmer can show that the injured person was also at fault or somehow contributed to their own injury.
The question then becomes, did the injured person act reasonably (i.e., like an average person would act in those circumstances)? If, for example, the person who got food poisoning failed to properly store the food, follow “best by” dates, cook the food at the recommended temperature, or thoroughly wash it as instructed, a court may find them partly or even entirely at fault and reduce the damages that the farmer must pay out accordingly.
Here’s the takeaway message: Farmers can help mitigate their damages, and, better yet, prevent anyone from getting sick in the first place, if they better educate their customers on how to properly store and prepare the foods they sell. This can be as simple as putting basic instruction notes in CSA boxes, posting signs either near bulk bins or the scale and till at farm stands and farmers’ markets, posting food safety information on the website and referring customers there, distributing handouts along with invoices to wholesalers, and so on. The bonus is that with proper storage, consumers will likely be happier as their products will stay fresher and even last longer!
Farmers might automatically be on the hook if they sell a contaminated product that is “unreasonably dangerous” and someone gets sick as a result
Under some circumstances, a farmer might automatically be on the hook simply by having sold a contaminated product that results in someone getting sick, regardless of whether the farmer acted reasonably. This is what’s called strict liability.
Rather than focusing on the behavior of the producer, strict liability lawsuits focus on the product itself. Strict liability in foodborne illness lawsuits basically means if you sell a food product that was contaminated when it left the source—whether it be the farm, the warehouse, the restaurant, and so on—and that product is “unreasonably dangerous” by its nature, you are automatically liable for any resulting damages. There is no inquiry as to whether the producer or seller acted with reasonable care.
You might be asking, what constitutes unreasonably dangerous? In most states, whether a product is unreasonably dangerous is based on what “an ordinary consumer might reasonably expect.” In other words, a food product might be considered “unreasonably dangerous” if it includes an ingredient or pathogen that an ordinary consumer would not reasonably expect to find in that food product.
This begs the question: would ordinary consumers expect some level of risk from eating green salads, sprouts, or melons—some of the most common carriers of food-borne pathogens? Would ordinary consumers expect a level of risk of salmonella when eating raw or lightly cooked eggs? Would ordinary consumers expect the risk of listeria when eating unrefrigerated caramel apples? As you can see, two minds may disagree! Ultimately, this is a factual question that would be up to the jury to decide on a case-by-case basis.
The reality is the law often presumes that the ordinary consumer is relatively unwitting. This is one reason why we see “warning” signs on particularly dangerous products. The law often requires it. If the manufacturer doesn’t include a warning when required, they will likely automatically be on the hook if someone gets hurt.
Some states have specific laws that require food producers to include warnings on certain products, such as raw milk or undercooked foods like eggs, poultry, and meat products. Even if the law doesn’t require warning signs, in certain circumstances, a food product may be considered “unreasonably dangerous” because adequate warnings or instructions were not provided.
Just as for negligence, contributory fault rules apply in strict liability lawsuits in most states. In other words, if a farmer is found strictly liable in a food safety lawsuit, they can reduce or maybe even eliminate the damages they are responsible for if the farmer can show that the injured person somehow contributed to their own injury. Did they cook the eggs well enough, wash the greens and sprouts, refrigerate their caramel apples—as an ordinary consumer would? Did they follow any explicit instructions provided by the farmer? This is yet another reason why including proper storage and preparation instructions and “best by” dates can be helpful.
When it comes to strict liability, here’s the takeaway message for farmers: take food safety seriously. In addition, be sure to include warnings and instructions for proper storage and preparation, including “best by” dates when selling high-risk products!
Were the caramel apples unreasonably dangerous? The caramel apples that Billy and Betty ate sat in the hot car for several hours on their ride home, and then on the kitchen counter for a few more hours before it was time for dessert. They didn’t think they had to refrigerate them, as they often see unrefrigerated caramel apples in candy stores. Billy and Betty’s attorney will argue in court that caramel apples are by nature unreasonably dangerous. She’ll point to scientific studies showing how apples punctured with dipping sticks that are then coated with caramel and left unrefrigerated pose a huge risk for the spread of listeria.
The question for the court might then become, should Alexi have included a warning or instruction to refrigerate the caramel apples? Were the caramel apples without such an instruction “unreasonably dangerous”? Alexi will argue that ordinary consumers should know to refrigerate caramel apples. She will also argue that Billy and Betty were partly if not entirely at fault because they didn’t refrigerate them, and that she shouldn’t be responsible for all the damages. The result is uncertain, as it’ll be up for the jury to decide!
No matter how much care the farmer takes, the reality is that accidents can and do happen. In addition, many food contamination cases involve a number of potential sources up and down the supply chain—the farmer, distributor, wholesaler, restaurant, retailer, and so on. Even if the farmer is not ultimately at fault, there’s nothing stopping the injured person—or their insurance company or the insurance company of someone else along the supply chain—from bringing the farmer into a complex and costly lawsuit.
Farmers might be asking, which standard will apply to them—negligence or strict liability? The answer is likely both, and maybe even others. When filing these types of lawsuits, attorneys will often throw in as many legal claims as are remotely applicable to the facts to see which one(s) might stick. This is yet again why these lawsuits are complex and costly. Nevertheless, whether under claims of negligence or strict liability, fault in a personal injury lawsuit involving food contamination often hinges on causation, or exactly where in the food production or distribution chain the contamination occurred. If the consumer sues the grocer, the grocer will point the finger at the processor or distributor, and they will in turn point the finger at the supplier or farmer. Ultimately, it’ll be up to the jury to decide after hearing all the facts.
Bottom line, to prevail against a farm in a personal injury lawsuit—whether negligence or strict liability—the injured person must prove that the food was contaminated when it left the farm. The farmer needs to show that the contamination occurred elsewhere, or at least raise enough doubt in the minds of the jury that it occurred on the farm. How does the farmer do that?
Farmers can take proactive steps to protect themselves in case they get caught in such messy litigation. A farmer’s best defense may be having a food safety plan in place with records and documentation to prove the plan was being implemented. Following certain GAP standards or complying with FSMA could also help, to the extent that doing so is reasonable and practical for the farm.
By taking such reasonable food safety precautions, the farmer may raise enough doubt in the minds of the jury that the contamination occurred on the farm. It must have occurred elsewhere! But the farmer will need a paper trail to prove it. Records and documentation showing that a food safety plan and/or standards are being followed can’t be emphasized enough! The takeaway message is: adopt and implement a food safety plan, follow GAPs and FSMA standards where feasible, and keep records of how food safety measures on the farm are being implemented.
When it comes to personal injury suits, the best risk management option is insurance (assuming farmers are following the best food safety practices already) Insurance is important for two reasons. First, the insurance company will provide an attorney to defend the insured person or business against the claim. The attorney will know all the ins and outs of personal liability and should provide expert representation. Second, if the farmer is at fault, the insurance company should pay the resulting liability up to the coverage limit.
It’s important for farmers to know whether their insurance policy covers the contamination risks they are most likely to experience. This can be quite challenging.
What we call “farm policies”—also called “farm liability insurance” or a few other names—cover damage to farm property from certain risks like fires and tornados. Many of those policies also cover injuries to farm guests. From there, though, it gets a little more complicated.
Most farm liability policies will cover a food poisoning injury under select circumstances. Some policies only cover injuries that occur on the farm. This means if the contaminated product was purchased from a wholesaler or at the farmers’ market, the farmer is not insured. Some farm liability policies cover food poisoning injuries only if the contamination was the result of a fire, tornado, or other natural risk, but not farmer negligence. Farmers never intend to be negligent, but as we discussed earlier, accidents happen. An insurance policy that doesn’t cover negligence has a significant gap. Generally speaking, farm liability policies will not extend to contamination of value-added products or those occurring at an agritourism event.
Many farms will need to modify the standard farm liability policy to address food safety incidents. A “business endorsement” may do the trick if the farm wants coverage for a small value-added operation or a few agritourism events. If the farm wants broader coverage, a commercial liability policy may be the best choice. Commercial policies provide coverage across many marketing channels— wholesale, value-added, processing, and direct-to-consumer. In Farm Commons’ experience, policies vary widely, and some even contradict themselves as to whether food safety outbreaks are covered.
There’s nothing worse than paying insurance premiums only to find out later that the policy doesn’t provide coverage for the actual incident that occurs. The hard reality is that it can be difficult to determine if a specific insurance policy will cover a specific risk. Farmers might go straight to the source and read the policy document, but this can be quite intimidating. Making it additionally difficult, the actual policy language may not have been delivered. Farmers may have to call the agent, who then contacts the underwriter, and a long game of phone tag develops.
Even after getting a copy of the policy, farmers may be stumped as to what it means. Many attorneys are stumped as to what insurance policies cover. If you do get your hands on your entire policy be sure to pay very close attention to the exclusions, which are usually found at the end. This will list items that are not covered. Sometimes it will explicitly say, “Food-borne illness outbreaks are excluded.” There’s obviously no coverage there. If it has a reference to mold or pathogenic or biological contaminants, be careful, as this will likely be interpreted to exclude food contamination incidents. A shortcut is simply to ask the insurance agent whether specific risks are covered. Admittedly, this is not a bulletproof strategy. The agent may not have an accurate impression of how the policy applies to a non-traditional farm operation. (In other words, the agent might be wrong.)
The best way to find that agent is to talk to other farmers in the community who run operations similar to what you do or are planning to do. As a secondary strategy, it’s always best practice to get things in writing. When talking with an insurance agent about whether a risk is covered (or when talking with a bank about a loan, a credit card company about a payment plan, or any other conversation with serious implications), create a paper trail. Communicating via email is one way to establish a written record. Where that isn’t possible, an office log containing the time of the call, identity of the person called, and the content of the discussion can go a long way toward establishing potential recourse if you are misinformed.
A second hard reality is that insurance may not be available for certain farms as discussed previously. If the insurance industry sees a specific practice or production method as exceptionally risky, they may refuse coverage. If there aren’t a lot of farmers asking for certain coverage, the insurance company doesn’t see any opportunity to make money by offering such coverage. And when one insurance company turns a farmer down, many others are likely to follow suit.
This puts farmers in a very difficult position. In the short term, the best answer is to ask other farmers for a reference to an amenable agent. If that doesn’t yield results, farmers may need to adapt their operations to become insurable. Over the long term, farmers can work with other farmers and farming advocates to convince the insurance industry to cover more unique farm and sales operations. This may be a slow (and frustrating) process, but over time, with enough voices, things can change.
TAKING ACTION ON INJURY LAWSUITS
Food safety plan and recordkeeping: Farmer Sally sets aside a day over the winter to put together a food safety plan. She visits OnFarmFoodSafety.org for resources and templates that explain the process. She takes extra care to set up protocols for maintaining daily recordkeeping logs and other documentation procedures that will clearly show how she’s implementing her plan.Insurance: Farmer Sally wants insurance for food safety incidents so she takes the following actions:
© Farm Commons 2014 – 2024
Privacy Policy | Terms of Use