1. for Use in Food Products.”
TORT LAW ESSAY SERIES
ESSAY QUESTION #8
MODEL ANSWER
Grain Co. purchases grain from farmers each fall to resell as seed grain to other farmers
for spring planting. Because of problems presented by parasites which attack and eat seed
grain that is stored for more than a few months, Grain Co., like all seed grain dealers,
always treats the seed grain it purchases with an invisible mercury-based chemical to
poison these parasites. Grain Co. sells the seed grain loose by the truckload to the farmers
who will plant the seed. The Grain Co. trucks display signs that state: “Seed Grain. Not
for Use in Food Products.”
Farmer Jones bought a truckload of seed grain from Grain Co. She was present when the
seed grain was delivered, and supervised the Grain Co. employees who unloaded the seed
grain into her silos. She then used some of the seed grain to sow her field. When she
found that she had some seed grain left over, she fed it to her dairy cattle.
Farmer Jones sold the milk produced by her dairy cattle to Big Food Stores, Inc. (“Big
Food”). Several of the people who bought their milk at Big Food became seriously ill, and
the Centers for Disease Control (CDC), a government agency that investigates outbreaks
of illness, determined that mercury poisoning was the cause of their illness. CDC traced
the mercury to the milk that Farmer Jones sold to Big Food.
On what theory or theories might the injured milk consumers recover damages from, and
what defenses should they anticipate, in actions against:
1. Grain Co.? Discuss.
2. Farmer Jones? Discuss.
3. Big Food? Discuss.

2. MODEL ANSWER
I. MILK CONSUMERS v. GRAINCO.
NEGLIGENCE. A prima facie case of negligence requires that plaintiff show that defendant owes them a duty to exercise reasonable care, that the defendant breached the applicable standard of care, and that the breach was the actual and proximate cause of the plaintiff’s injury. Defendant may assert the defenses of contributory negligence, comparative negligence and / or assumption of the risk, depending on the jurisdiction.
DUTY. Almost all people owe others a duty of reasonable care to act as an objectively reasonable person would act in similar circumstances. In Palsgraf, the Cardozo majority view posits a duty extends just to those in the zone of danger which was created by defendant’s conduct. Alternately, the Andrews minority view is that a duty extends to everyone. Here, Grainco sold grain to Farmer Jones, not to milk consumers. Therefore, plaintiffs would be outside of the zone of danger created by the negligence of defendant, and no duty would be owed under a Cardozo approach. However, under Andrews, a duty is owed to all.
STANDARD OF CARE. In general, a defendant owes a duty of reasonable care, to act as a reasonable person in similar circumstances. Here, Grainco would have to act as a reasonable professional grain company selling grain to farmers. This would be a fairly high standard of care, inasmuch as the circumstances indicate that they use a dangerous mercury-based pesticide to treat the grain.
BREACH OF DUTY. Where defendant did not act to reasonably protect plaintiff from foreseeable harm. There are three main ways in which breach of duty may be shown, including the Hand Formula, violation of a statute through negligence per se, or through the doctrine of res ipsa loquitur / the thing speaks for itself.
HAND FORMULA. B<PxL. Defendant’s burden to have acted differently, or the reasonable precaution cost, is balanced against the probability of harm (P), multiplied by the severity of harm (L). Defendant breaches their duty where the burden is less than the probability times the liability. Here, a reasonable grain company would have known that some farmers would use the seed grain as feed grain. Here, we are told that all seed grain providers used mercury to treat parasites, therefore, at first glance, Grainco is in conformity with their industry custom. However, mercury is a very toxic element, and thus Grainco could have acted reasonably to fully inform Farmer Jones of the dangers of using the grain as feed grain for livestock. Grainco trucks had a sign indicating that the grain was for seen and not for feed, however, much more action should have been taken to clarify to Farmer Jones that she must not use the grain as feed grain, including a description of the ramifications of using the grain as food. Therefore, because Grainco did not act reasonably, they breach their duty of care to the milk consumers.

3. ACTUAL CAUSE.
A defendant’s conduct must have actually caused harm to plaintiff. Additionally, where two defendants act separately, and both of their acts would be sufficient for actual cause, then both defendants will be liable. Here, but for Grainco putting mercury on the grain, and failing to fully inform Farmer Jones of the dangers of mercury, the milk consumers would not have been injured. There are other causes present, but Grainco’s actions would be considered a substantial factor in causing the harm.
PROXIMATE CAUSE. Defendant is only liable for consequences which are reasonably foreseeable at time of injury, and which are not too remote or improbable.
FORESEEABILITY. Was the Injury Foreseeable to Defendant? Poisons like mercury are known for causing a number of bad physical reactions and injuries, even in low amounts. Therefore, when one puts a poison out into the general population, it is foreseeable that many people may be foreseeable plaintiffs, and that such injuries may occur in a varied pattern determined by how much mild the consumers drank, and the type of reactions that occurred with each plaintiff.
INTERVENING EVENTS. Only superseding intervening events, which are unforeseeable, will break the chain of defendant’s causation, and this includes unforeseen criminal behavior or willful wrongdoing by third parties, unforeseen acts of God, or grossly negligent medical care. Here, the actions of Farmer Jones to use the seed grain as feed grain, was foreseeable, because the livestock needs nourishment on a daily basis. Therefore, there are no superseding intervening events, and the causal chain will not be broken.
DAMAGES. The milk consumers suffered significant physical injury, for which they should be compensated.
DEFENSES.
CONTRIBUTORY NEGLIGENCE. Contributory negligence is a total bar to recovery for plaintiff, and where plaintiff’s unreasonable conduct proximately causes their harm, also called the doctrine of unavoidable consequences. There are no facts indicating that the milk consumers acted unreasonably when they purchased and drank the milk.
COMPARATIVE NEGLIGENCE. Comparative negligence apportions fault by plaintiff prior to the injury, to proportionally reduce plaintiff’s recovery. There are no facts indicating that the milk consumers acted unreasonably when they purchased and drank the milk.
ASSUMPTION OF THE RISK. Implied assumption of the risk is strictly construed by the courts, and will exist as a defense where plaintiff, by their actions, showed an implied awareness of the risk of harm, and then acted in a voluntary manner. There are no facts indicating that the milk consumers knew of the mercury in the milk, and therefore they did not assume a risk of harm.

4. REMEDIES. The milk consumers will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life.
STRICT PRODUCTS LIABILITY.
PROPER PARTIES.
PROPER PLAINTIFF. At common law, a proper plaintiff needed privity with the defendant. Modernly, a proper plaintiff is any foreseeable user of the product. Here, milk drinkers are foreseeable users of grain that is used to feed livestock.
PROPER DEFENDANT. Proper defendants are retailers, manufacturers, or others in the distributive chain who are in the business of selling that type of product. Grainco distributes grain to farmers, and therefore they are in the distributive chain, and they are a proper defendant.
PRODUCT DEFECT. A product is defective where it is defective and unreasonably dangerous at the time of sale. There are three ways to establish that a product is defective, through a manufacturing defect, a design defect or through inadequate warnings or instructions.
MANUFACTURING DEFECT. A manufacturing defect exists where the manufacturing process itself caused the defect, resulting in an unreasonably dangerous product. Here, we are told that all grain was treated the same, therefore there was not a manufacturing defect, here.
DESIGN DEFECT. A design defect exists where the design of a product makes it unreasonably dangerous. A product may have a design defect where, under the consumer expectation test, the product is more dangerous than expected by a normal consumer of the product. Additionally, under the risk-utility / feasible alternative design test, where a product presents a risk of potential harm that outweighs the use or utility of the product to consumer, it will be seen to have a design defect. Here, we are told that it is common practice for the seed grain industry to use mercury to treat parasites. Grainco would not be called upon to be the only company in their industry, to design a different way to treat parasites.
INADEQUATE WARNING. Defendant needs to give adequate warnings of non-obvious risks, through clear instructions, which the average consumer can both see and understand. Here, the signage on the trucks did not explain the possible ramifications of using the seed grain as feed grain. Additionally, the warning was in a place that Farmer Jones may not have seen. The inadequacy of the warning, led to a product that was more dangerous than a reasonable consumer would expect.
ACTUAL CAUSE. Supra.
PROXIMATE CAUSE. Supra.
DAMAGES. Supra.
DEFENSES. The defenses for products liability included plaintiff misuse, plaintiff overuse, product alteration, regulatory compliance, state of the art, comparative negligence and the state of the art defense. None are applicable.

5. REMEDIES. The milk consumers will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life.
IMPLIED WARRANTY.
PRIVITY. Privity was required at Common Law. Modernly, any foreseeable user of the product may have a claim in implied warranty. Here, the milk consumers were foreseeable users.
IMPLIED WARRANTY OF MERCHANTABILITY. There is an implied warranty of merchantability that goods are of fair or average quality, and fit for the ordinary purpose for which they are to be used. This implied warranty was breached because the milk contained the dangerous element of mercury.
DISCLAIMER OR LIMITATION. A disclaimer for an implied warranty must be conspicuous and state the work ‘merchantability,’ and there are none present, here.
CONCLUSION. It is likely that Milk Consumers will prevail in their negligence claim against Grainco, because Grainco breached their duty of care. Additionally, Milk Consumers will prevail with their strict products liability claim, because their warnings were inadequate.
II. MILK CONSUMERS v. FARMER JONES.
NEGLIGENCE. Supra.
DUTY. Supra. The zone of danger is anyone who may ingest products by Farmer Jones. Here, all of the plaintiffs are milk consumers. Therefore, Farmer Jones would owe a duty of care to the plaintiffs.
STANDARD OF CARE. Supra.
Farmer Jones would be held to a standard of a reasonable professional farmer selling products for consumption by the general public, which would be a fairly high standard of care.
BREACH OF DUTY.
HAND FORMULA. Supra. Farmer Jones knew that consumers would be drinking the milk produced by her cows, so she should have taken extensive care to make sure that all of the products which the cows ingested, were safe. Here, without first checking with Grainco, she used seed grain as feed grain. Farmer Jones did not take reasonable action to keep the future consumers of her milk safe.
ACTUAL CAUSE. Supra.
But for feeding mercury tainted grain to the cows, the milk customers would not have been injured.

6. PROXIMATE CAUSE. Supra.
FORESEEABILITY. It is foreseeable that feeding poisonous grain to cows, will product many and varied injuries in the consuming public.
INTERVENING EVENTS. Yes, but none supersede break the causal chain.
DAMAGES. Supra.
DEFENSES. Supra.
REMEDIES. Supra.
STRICT PRODUCTS LIABILITY.
PROPER PARTIES.
PROPER PLAINTIFF. Supra.
PROPER DEFENDANT. Farmer Jones is within the chain of commerce of selling the milk products, and thus is a proper defendant.
PRODUCT DEFECT.
DESIGN DEFECT. Supra. Here, the design of the feeding program by Farmer Jones, was apparently deficient. More specifically, she used a mercury-tainted grain in feeding her cows, thereby producing a more dangerous product than a reasonable milk consumer would expect. Therefore, there is a design defect related to her feeding program and production of milk.
ACTUAL CAUSE. Supra.
DEFENSES. Supra. Here, we are told that the CDC determined the modality of the harm, and other government regulations related to homogenization and pasteurization of the milk, would help Farmer Jones to assert that she was in compliance with the regulations intended to make the product safe, which would allow her a partial defense.
IMPLIED WARRANTY. Supra.
CONCLUSION. Farmer Jones should have exhibited a higher standard of care, in making sure to use the grain appropriately, and she will be liable in a claim of negligence forwarded by Milk Consumers.

7. III. MILK CONSUMERS v. BIG FOOD.
NEGLIGENCE. Supra.
DUTY. Supra. The consumers purchased the milk from Big Food, and they therefore were within the zone of danger created by Big Food’s negligence.
STANDARD OF CARE. Supra. Big Food would be held to the standard a reasonable grocer.
BREACH OF DUTY. Supra.
HAND FORMULA.
Here, we are told that the mercury was invisible. Therefore, while Big Food would have had to do a cursory investigation of the food products, to make sure, for instance, there were no dents in cans, and the like, they would not reasonably be said to have scientifically inspected every food item. Therefore, Big Food did not breach their duty of reasonable care. However, if we assume arguendo, for the sake of argument, that they did breach their duty, we consider the additional factors of a negligence claim.
ACTUAL CAUSE. Supra.
But for Big Food selling tainted milk, there would have been no injury.
PROXIMATE CAUSE. Supra.
Injury was not foreseeable to Big Food, because they did not know the milk was tainted.
DAMAGES. Supra.
DEFENSES. Supra.
REMEDIES. Supra.
STRICT PRODUCTS LIABILITY.
PROPER PARTIES.
PROPER PLAINTIFF. Supra.
PROPER DEFENDANT. Big Food is in the chain of commerce, and is a proper defendant.
PRODUCT DEFECT.
INADEQUATE WARNING. The milk consumers were not given a warning that the milk was tainted, and dangerous.

8. ACTUAL CAUSE. Supra.
PROXIMATE CAUSE. Supra.
DAMAGES. Supra.
DEFENSES. Supra.
REMEDIES. Supra.
IMPLIED WARRANTY. Supra.
JOINT AND SEVERAL LIABILITY. For multiple defendants who are liable for the same indivisible harm, each defendant may be jointly and severally liable to plaintiff.
INDEMNIFICATION. Indemnification is a prior agreement, where one party agrees to pay for the liability of another, should future liability occur. Indemnification is common in products liability situations, and Big Food was probably indemnified against Farmer Jones.
CONTRIBUTION. Where one defendant pays more than their percentage of damages, they may secure reimbursement from another defendant. Whichever party is responsible for payment first for the injuries of the milk consumers, will seek contribution against the other party.
CONCLUSION. Big Food did not know that the milk was tainted, therefore, Milk Consumers will have difficulty in prevailing against Big Food for claims in negligence or strict products liability.