If ultimately found liable, the food safety audit firm would be required to pay damages to persons injured due to its negligence.
Recently, a Maryland District Court refused to dismiss a suit against Primus Labs, a food safety audit firm, arising from the sale of Listeria contaminated cantaloupe by Jensen Farms.
The court found that the Primus Labs owed a duty to consumers under general negligence principles and under the “Good Samaritan” doctrine.[1]
Primus Labs was hired to audit the facilities and procedures used at Jensen Farms to ensure that they met applicable health and cleanliness standards. In addition, the audit was intended to ensure that the cantaloupes were fit for human consumption and not contaminated by lethal pathogens.
Certification required before sale
Certification by Primus Labs was required before Jensen could sell its cantaloupe to Frontera Produce, the buyer. Primus Labs gave Jensen Farms a “superior” rating shortly before the facility was found by FDA to be the source of a multistate outbreak of Listeria monocytogenes that resulted in 147 persons infected and 33 deaths. [2]
The Maryland District Court found that Primus Labs owed a duty to consumers under two legal theories. First, a duty was found because of the foreseeability of the personal injury. Primus Labs’ agreement to perform the audits indicated its intent to ensure that Jensen Farms’ cantaloupe was safe for human consumption.
Therefore, it was reasonably foreseeable that injury would result from a negligent inspection. In addition, the Court stated that public policy supports finding that Primus Labs had a duty to consumers because non-negligent audits of agricultural facilities should be encouraged.
Second, the court found a duty under the “Good Samaritan" doctrine recognized under Maryland tort law.[3]
The doctrine states, in part, that one who provides services recognized as necessary for the protection of a third person from a harm is subject to liability to the third person for harm resulting from a failure to exercise reasonable care if that failure increases the risk of such harm.
Audit purpose
Primus Labs knew that the purpose of the audit was for the protection of consumers and that a negligently performed audit prevented the producer from taking corrective action; therefore the audit could have increased the likelihood of harm to consumers.
In a wrongful death action involving the same Listeria outbreak, a Louisiana federal court reached a different conclusion with regards to the duty issue.[4]
The Louisiana Court found that Primus Labs owed no duty to consumers because their audit reports were not intended for the benefit of consumers, because there was no actual reliance by the consumer on their audit reports, and because Primus Labs had no control over the implementation of their audit recommendations.[5]
The Court implicitly rejected the “Good Samaritan" doctrine as a basis for liability because it was not adopted as a source of duty in Louisiana.[6]
Because negligence liability principles vary from state to state and because avenues of litigation against food safety auditors have remained largely untouched, there is much uncertainty in the determination of liability for a food safety auditor.
Not only do the decisions reinforce the need for food safety inspections to be carried out with utmost care, it also means inspectors and food companies should examine their contracts with each other to make sure the proper contractual safeguards and indemnification provisions are included.
- Mr Behr is a partner, and Mr Khan, an associate, in the Food Litigation practice at Keller and Heckman LLP, Washington, D.C.
[1] Lloyd v. Frontera Produce, Ltd., C.A. No. WDQ-13-2232 (D. Md. Sept. 24, 2014).
[2] Centers for Disease Control, Multistate Outbreak of Listeriosis Linked to Whole Cantaloupes from Jensen Farms, Colorado (August 27, 2012), http://www.cdc.gov/listeria/outbreaks/cantaloupes-jensen-farms/index.html?s_cid=cs_654.
[3] Liability to Third Person for Negligent Performance of Undertaking, Restatement (Second) of Torts §324A (1965).
[4] Hayes v. Frontera Produce, Ltd., C.A. No. 3:12-cv-00588-BAJ-RLB (D.M.D. La. March 24, 2014) (order granting motion to dismiss).
[5] Id.
[6] Hayes v. Frontera Produce, Ltd., C.A. No. 3:12-cv-00588-BAJ-RLB (D.M.D. La. July 17, 2014) (order denying motion for reconsideration) (The court’s ruling on a Motion for Reconsideration clarified the court’s holding in its Order granting Primus Labs’ Motion to Dismiss.).