Allen v. Delchamps, Inc.

• Decision Date: 10 September 1993
• Parties: Prod.Liab.Rep. (CCH) P 13,671 Jeffrey F. ALLEN and Beverly Allen v. DELCHAMPS, INC. 1920236.
• Court: Alabama Supreme Court

Page 1065

624 So.2d 1065

Prod.Liab.Rep. (CCH) P 13,671

Jeffrey F. ALLEN and Beverly Allen v. DELCHAMPS, INC.

1920236.

Supreme Court of Alabama.

Sept. 10, 1993.

Richard E. Davis and Sandy G. Robinson of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for appellants.

Davis Carr and James W. Lampkin II of Pierce, Carr & Alford, P.C., Mobile, for appellee.

MADDOX, Justice.

The issue in this case is whether the trial court erred in entering a summary judgment in favor of the defendant--the operator of a grocery store--on the plaintiffs' claim that the defendant was liable for injuries that the plaintiffs allege were caused by ingesting celery hearts that had been treated with sodium bisulfite before one of the plaintiffs purchased them from the defendant's store.

Delchamps, Inc., the defendant, operates grocery stores in Baldwin County, Alabama, along with many other stores around the country. Delchamps routinely inspects produce for freshness and quality at its warehouse. Delchamps also requires its suppliers to certify that they are complying with pesticide and insecticide regulations. Delchamps also specifically instructs its suppliers not to use the insecticide Alar.

On July 14, 1990, the plaintiff, Beverly Allen, purchased from a Delchamps grocery store in Baldwin County two bags of celery hearts that had been prepackaged in cellophane wrapping by Delchamps's supplier. Delchamps had inspected samples of the celery at its warehouse for freshness and quality.

On the afternoon of July 14, Mrs. Allen washed and ate a piece of the raw celery. Mrs. Allen suffers from asthma, and she had an immediate anaphylactic reaction. Three days later, her husband, the plaintiff Jeffrey F. Allen, took the two bags of celery, one opened and one unopened, to a testing laboratory in order to determine the cause of Mrs. Allen's reaction to the celery. The laboratory concluded that 1.2 parts per million of sodium bisulfite were on the celery in the unopened bag and 0.5 part per million of sodium bisulfite was on the celery in the opened package from which Mrs. Allen had eaten.

Dr. William N. Sokol examined Mrs. Allen and concluded that Mrs. Allen is an asthmatic who is sensitive to metabisulfites. There was evidence presented that approximately 1.2 percent of the world population are asthmatics, that approximately 8 percent of asthmatics are sensitive to sulfites, and that approximately .096 percent of the world population are asthmatics who are sensitive to sulfites. In the instant case, both parties concede that about 1.2 percent of the population are asthmatics and that 8 percent of those are sulfite sensitive. Applying these percentages to the latest federal census figures, more than 200,000 people nationwide and more than 3800 people statewide would be sulfite-sensitive asthmatics. ¹

In November 1990, Mrs. Allen sued Delchamps, Inc., and several other defendants, asserting causes of action based on negligence and wantonness, the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), and breach of the implied warranty of merchantability under Ala.Code 1975, § 7-2-314. Mr. Allen also sued, claiming a loss of consortium. Delchamps moved for summary judgment, and the trial court granted the motion as to all of the plaintiffs' claims. The court then certified the summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P.

The standard of review applicable to a defendant's summary judgment motion is well established. Rule 56(c), Ala.R.Civ.P., provides that summary judgment is proper when the movant makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, unless the nonmovant rebuts that showing by substantial evidence creating a genuine issue of material fact. See § 12-21-12, Ala.Code 1975; Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218, 219-20 (Ala.1991).

With regard to the plaintiffs' negligence and wantonness claims, we note that the standard of care for retail grocers selling prepackaged closed containers of food was established in Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735 (1936). In upholding the dismissal of an action against a retailer who had sold a prepackaged sack of flour containing a poison that injured the plaintiff, this Court said:

"In this day the grocer's stock consists in much of canned goods, goods in bottles, cartons, sacks, packages of great variety, ... sold at retail in the unopened package. In common reason the grocer could not inspect the contents of every sack of flour he handles. No one expects him to do so. To impose a legal duty so to do is too exacting."

Id., at 406, 171 So. at 737. This Court also said in Kirkland that a retailer of prepackaged closed containers of food should not be held liable if he purchased from a reputable manufacturer or dealer and the imperfections were not readily ascertainable. Id. This case, however, involves fresh produce contained in perforated clear plastic bags closed by a plastic twist-tie or tape. The defendant did in fact open samples of the celery to inspect it for freshness and quality.

Furthermore, the plaintiffs assert a claim of negligence per se based upon the defendant's alleged violation of the federal Food, Drug & Cosmetic Act (F.D.C.A.) and FDA regulations promulgated thereunder indicating that sodium bisulfite is not safe when "used on fruits or vegetables intended to be served raw to consumers or sold raw to consumers or to be presented to consumers as fresh" and prohibiting its use in this manner. 21 C.F.R. § 182.3739. See 21 U.S.C. §§ 331(b), 342(a)(2)(C), 348 (prohibiting "[t]he adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce" and stating that "[a] food shall be deemed adulterated ... if it is, or it bears or contains, any food additive which is unsafe within the meaning of [21 U.S.C. § 348]"). Fox v. Bartholf, 374 So.2d 294, 295-96 (Ala.1979), establishes the requirements for a case of negligence per se:

(1) The statute must have been "enacted to protect a class of persons which includes the litigant seeking to assert the statute";

(2) The injury complained of must be "of a type contemplated by the statute";

(3) "The party charged with negligent conduct must have violated the statute"; and

(4) "The jury must find [that] the statutory violation proximately caused the injury."

There is substantial evidence that would allow a reasonable person to find that these requirements were met in this case. The FDA stated in adopting the sulfite regulations that "addressing the potential hazards to sulfite-sensitive individuals" was its primary concern and that "the purpose of this regulation is to respond to a serious health concern." 51 Fed.Reg. 25021, 25022 (1986). Expert medical testimony indicated that Mrs. Allen is a sulfite-sensitive individual and that the amount of sodium bisulfite on the celery would be sufficient to cause a reaction. That evidence is sufficient to raise a genuine issue of material fact as to whether the statute was violated and whether the violation, if any, proximately caused the injury. Thus, the summary judgment is improper as to the negligence and wantonness claim.

Delchamps asserts that the summary judgment was proper because, it says, no private right of action exists under the F.D.C.A., 21 U.S.C. § 301 et seq. (1988). Delchamps is correct that there is no private cause of action for civil damages under the F.D.C.A. Pacific Trading Co. v. Wilson & Co., 547 F.2d 367 (7th Cir.1976). See also, 21 U.S.C. § 337 (1988) ("All such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States."). However, the plaintiffs in this case are not suing directly under the F.D.C.A. or its accompanying regulations. Rather, they are relying on the regulations to establish a duty or standard of care. See Grove Fresh Distributors, Inc. v. Flavor Fresh Foods, Inc., 720 F.Supp. 714, 716 (N.D.Ill.1989) ("Although courts have held that there is no private cause of action under the FDCA, Grove Fresh has not brought suit directly under the FDCA or its accompanying regulations. Grove Fresh relies on the FDA regulation merely to establish the standard or duty which defendants allegedly failed to meet. Nothing prohibits Grove Fresh from using the FDCA or its accompanying regulations in that fashion."). See also Lowe v. General Motors Corp., 624 F.2d 1373, 1380 (5th Cir.1980) (holding that in Alabama violation of the National Traffic and Motor Vehicle Safety Act is evidence of negligence per se). Therefore, the summary judgment cannot be supported on the basis that the F.D.C.A. provides no private cause of action for damages.

In regard to their AEMLD claim, the plaintiffs must prove that Mrs. Allen "suffered injury or damages to [herself] or [her] property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer." Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala.1976). Similarly, the plaintiffs' implied warranty of merchantability claim requires that the plaintiffs show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used. Ala.Code 1975, § 7-2-314. These two standards "go hand-in-hand," at least as applied to food products, ...