School is strictly liable as ‘manufacturer’ of lunch

By Jeffrey P. Downer

A school district is the "manufacturer" of the lunch that caused E. coli illness and therefore strictly liable for that harm, the Washington Court of Appeals recently held.

In Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395 (Nov. 2002), a school district prepared and served a taco lunch. The preparation included thawing and cooking the meat, adding other ingredients, and delivering the food to schools for distribution from their cafeterias.

Ten students who ate the tacos became infected with deadly E. coli O157:H7 bacteria. An eleventh child, a two-year-old, later played with two of the infected students and contracted the same illness. Investigators from the state Department of Health concluded that the tacos caused the outbreak and that the infected students exposed the two-year-old to the same E. coli bacteria.

Families of the sickened children sued the District for strict product liability. Under such strict liability, a product manufacturer is liable for the harm that its product caused, no matter how careful the manufacturer was. The District asserted that it sold a service, not a product, and if it sold a product, it was the frozen ground beef that contained the E. coli O157:H7, not the finished product.

Both the trial court and the Court of Appeals disagreed. Washington’s Product Liability Act defines "manufacturer" broadly to include a seller that produces, designs, fabricates, constructs, or remanufactures the product or its components. The Court of Appeals held that the District’s cooking process "falls neatly into each" of these definitions. The District was the "manufacturer" of the tacos.

The District also argued that there was no proximate cause between the tainted tacos and the toddler’s illness. The District argued that that causal relation was both speculative and not foreseeable. The Court of Appeals disagreed. The court noted the substantial medical testimony that plaintiffs had offered to show that the tacos infected the students, who in turn infected the toddler, so that causation was not speculative. Furthermore, the medical testimony showed that such secondary cases are fairly common, making up 1 to 10 percent of the cases in any E. coli O157:H7 outbreak. Washington’s Product Liability Act does not restrict claimants to those persons who have direct contact with the product.

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Editor: Jeffrey P. Downer	Eml: jpd@leesmart.com
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