IN THE SUPREME COURT OF IOWA
No. 60 / 04-1647
Filed September 8, 2006
DOUGLAS C. KOLARIK,
Appellant,
vs.
CORY INTERNATIONAL CORPORATION, ITALICA IMPORTS, and
TEE PEE OLIVES, INC.,
Appellees.
Appeal from the Iowa District Court for Johnson County, William L.
Thomas, Judge.
Plaintiff seeking damages for broken tooth appeals from adverse
summary judgment in products liability action against importers and
wholesalers of pitted olives. AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
Steven E. Ballard and Patrick J. Ford of Leff Law Firm, L.L.P.,
Iowa City, for appellant.
David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen,
Dubuque, for appellees.
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CARTER, Justice.
Plaintiff, Douglas C. Kolarik, appeals from an adverse summary
judgment in his product-liability action against Cory International
Corporation, Italica Imports and Tee Pee Olives, Inc., importers and
wholesalers of olives imported from Spain. 1 Plaintiff, relying on theories of
negligence, strict liability, and breach of express and implied warranty,
sought to recover damages from defendants for the fracturing of a tooth
when he bit down on an olive pit or pit fragment.
The district court granted summary judgment for defendants as to
each of plaintiff’s theories of recovery. After reviewing the record and
considering the arguments presented, we affirm the district court’s ruling
with regard to plaintiff’s theories of strict liability, and express and implied
warranty, but conclude that, with respect to plaintiff’s negligence claim
based on an alleged failure to warn, there remains a genuine issue of
material fact requiring denial of summary judgment on that theory of
recovery.
Plaintiff has alleged that he opened a jar of pimento-stuffed, green
olives, which had been imported and sold at wholesale by defendants. He
alleges that he used several of these olives, which bore the label Italica
Spanish Olives, in the preparation of a salad and, when eating the salad, bit
down on an olive pit or pit fragment and fractured a tooth.
The motion papers reveal that defendants are importers and
wholesalers of Spanish olives grown by various Spanish companies. 2 They
obtain bulk shipments of pimento-stuffed, green olives shipped in 150-
1Te Pe SA, a Spanish company, was named as an additional defendant in the
district court action, but no jurisdiction was obtained over that entity.
2The defendants are affiliated companies. Plaintiff has not attempted in the district
court or on appeal to identify the role that these entities individually played in placing the
olives in the stream of commerce.
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kilogram drums to their plant in Norfolk, Virginia. There, the drums are
emptied and the olives are washed and placed in a brine solution in glass
jars suitable for retail sale under various names including Italica Spanish
Olives. When defendants receive the olives, they are inspected for general
appearance, pH, and acid level. Defendants rely on their Spanish suppliers
for quality control of the pitting and stuffing process. Other facts that are
significant in reviewing the summary judgment ruling will be discussed in
our consideration of the legal issues presented.
I. Standard of Review.
Summary judgment rulings are reviewed for correction of errors of
law. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).
Summary judgment is appropriate if there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of
law. Iowa R. Civ. P. 1.981(3). Further considerations when reviewing a
motion for summary judgment are summarized as follows:
“A factual issue is material only if the dispute is over
facts that might affect the outcome of the suit. The burden is
on the party moving for summary judgment to prove the facts
are undisputed. In ruling on a summary judgment motion, the
court must look at the facts in a light most favorable to the
party resisting the motion. The court must also consider on
behalf of the nonmoving party every legitimate inference that
can be reasonably deduced from the record.”
Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004)
(quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001)).
II. Strict Liability and Breach of Implied Warranty.
In sustaining defendants’ motion for summary judgment, the district
court concluded that defendants were immune from plaintiff’s strict-liability
claim and implied-warranty-of-merchantability claim by reason of Iowa
Code section 613.18(1)(a) (2001). That statute provides:
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1. A person who is not the assembler, designer, or
manufacturer, and who wholesales, retails, distributes, or
otherwise sells a product is:
a. Immune from any suit based upon strict liability in
tort or breach of implied warranty of merchantability which
arises solely from an alleged defect in the original design or
manufacture of the product.
Iowa Code § 613.18(1)(a).
Plaintiff urges that section 613.18(1)(a) does not apply to his strict-
liability and breach-of-implied-warranty-of-merchantability claim. He
contends that defendants were assemblers of the olives at issue here, thus
removing them from the immunity provisions of the statute. The
assembling occurs, he asserts, when defendants remove bulk olives from
drums and repackage them in jars. We disagree that this repackaging
process excludes defendants from the immunity granted by the statute.
We are convinced that the assemblers’ exclusion contained in section
613.18(1)(a) is aimed at those situations in which an assembling process
has some causal connection to a dangerous condition in the product that
gives rise to a strict-liability claim or a product condition that constitutes a
breach of an implied warranty of merchantability. Because the repackaging
of the olives by defendants did not contribute to the condition that underlies
plaintiff’s product-liability claim, defendants are afforded the immunity
granted by the statute.
In the alternative, plaintiff argues that section 613.18(1)(a) does not
apply because olives are not a “product” as that term is used in that
statute. This argument is premised on his assertion that a product is
something that has been produced by human action. He contends that no
human action has produced the olives that defendants import and sell. In
his written argument, plaintiff states this point as follows:
No producer can mix ingredients or connect component pieces
in order to create an olive. The creation of an olive is a
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phenomenon of nature over which no human can exercise
control or influence. Thus, olives are neither assembled,
designed, nor manufactured.
To the contrary, we are reasonably certain that human effort does play a
role in the growing and commercial distribution of olives. A standard legal
dictionary defines “product” as follows:
Something that is distributed commercially for use or
consumption and that is usually (1) tangible personal property,
(2) the result of fabrication or processing, and (3) an item that
has passed through a chain of commercial distribution before
ultimate use or consumption.
Black’s Law Dictionary 1225 (7th ed. 1999). We are satisfied that
agricultural commodities may be products as that term is used in section
613.18(1)(a). That statute is aimed at situations giving rise to product
liability actions, and food products may produce such claims. See
Restatement (Third) of Torts: Product Liability § 7 (1998) (one engaged in
the business of selling or distributing food products is subject to liability for
harm to persons caused by defective product). Consequently, the district
court did not err in applying that statute to bar plaintiff’s strict-liability and
breach-of-implied-warranty-of-merchantability claims.
III. Express Warranty.
Plaintiff urges the words “minced pimento stuffed,” contained on the
label of the jar of olives, constituted an express warranty that the olives had
been pitted. Iowa Code section 554.2313(1) provides that an express
warranty is created by the following:
a. Any affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes part of the
basis of the bargain . . . .
b. Any description of the goods which is made part of the
basis of the bargain . . . .
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Although both the express-warranty and implied-warranty provisions of the
U.C.C. are drafted so as to determine the rights and obligations of the
immediate parties to a sales transaction, the Code also provides:
A seller’s warranty whether express or implied extends to
any person who may reasonably be expected to use, consume
or be affected by the goods and who is injured by breach of the
warranty.
Iowa Code § 554.2318. Under the facts of the present case, plaintiff falls
within this class of extended beneficiaries. 3 Official comment 5 to
accompanying U.C.C. section 2-607 (Iowa Code § 554.2607) states that
remote buyers falling within this class of beneficiaries are not required to
give the notice to seller that is otherwise required by section 554.2607(3)(a).
This was the holding in McKnelly v. Sperry Corp., 642 F.2d 1101, 1107 (8th
Cir. 1981) (applying Iowa law).
The vice president of quality control for defendants testified in his
deposition that olives must be pitted in order to be stuffed because the
pitting process provides the cavity in which the pimento stuffing may be
placed. This witness also testified that
[t]here’s a reasonable expectation that most of the pits would
be removed, and there’s some expectation that it’s not a perfect
world, and some of the pits or fragments may not be removed.
I think anytime you’re dealing with natural products—see, this
goes back to what we were talking about before. When the
olives go into those machines, the machines do very well, but,
you know, the olives have different shapes. And the reason
they don’t get pitted right all the time is because of the different
shapes of the olives.
The witness asserted that, because large quantities of pitted and stuffed
olives are received in bulk form, no practical method of inspection exists.
This witness’s statements concerning the inevitability of some pits or pit
3These beneficiaries do not include remote buyers seeking economic-loss damages.
Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa 1995); Beyond the Garden
Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309 (Iowa 1995).
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fragments being in the product was corroborated by plaintiff’s own assertion
that United States Department of Agriculture standards for pitted olives
allow 1.3 pits or pit parts per one hundred olives.
Comment 7 of the official comments that accompany U.C.C. section
2-313, from which Iowa Code section 554.2313 is taken, states:
Of course, all descriptions by merchants must be read against
the applicable trade usages with the general rules as to
merchantability resolving any doubts.
U.C.C. § 2-313 cmt. 7. In discussing this official comment of the U.C.C.
drafters, a federal court has declared: “[E]xpress warranties . . . must be
read in terms of their significance in the . . . trade and relative to what
would normally pass in the trade without objection under the contract
description.” Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428
F. Supp. 364, 373 (E.D. Mich. 1977). Given the evidence of how the
defendants receive and resell these olives, it is unrealistic to impart to the
description “minced pimento stuffed” the meaning that defendants are
guaranteeing that the olives in the jar are entirely free of pits or pit
fragments. It is much more realistic to interpret the description as only
warranting that the particular jar of olives contains pimento-stuffed, green
olives that would pass as merchantable without objection in the trade.
Plaintiff has provided no evidence that the contents of the jar, taken as a
whole, did not live up to this warranty. The district court did not err in
denying plaintiff’s claim based on express warranty.
IV. Negligence.
Much of the argument of both parties with regard to plaintiff’s
negligence claim turns on the decision in Brown v. Nebiker, 229 Iowa 1223,
296 N.W. 366 (1941). In that case, the plaintiff’s decedent, a restaurant
patron, swallowed a bone while eating a pork chop. The bone lodged in his
8
esophagus and complications from the surgical removal that followed led to
the patron’s death. The patron’s personal representative sued the
restaurant owner on theories of implied warranty and negligence. At the
trial, several witnesses testified that they had ordered pork chops at the
same restaurant on the same evening and that the pork chops were served
with the bone left intact.
The district court directed a verdict for the defendant on both the
warranty and negligence claims. On appeal this court held that the
common-law warranty that flows to patrons of a restaurant protected them
against food that was unfit for human consumption and against having
foreign objects in the food. The court held that pork chops served with the
bones in were not unfit for human consumption and that, because bones
are naturally contained in pork, they do not constitute a foreign object. On
the negligence claim, we indicated that a restaurant owes no duty to its
patrons to serve meat that is entirely free of bones that are natural to the
product.
In seeking to overturn the district court’s grant of summary judgment
on his negligence claim, plaintiff urges that, irrespective of its natural
components, a food product may be marketed in a manner in which the
consumer’s reasonable expectations will be that certain natural components
of the product have been removed. He asserts that this is the case with
respect to the pimento-stuffed olives at issue in the present case.
Defendants seek to uphold the district court’s summary judgment by
espousing the virtues of Brown v. Nebiker’s pronouncements concerning
consumer expectations as to the natural components of food products.
They argue in their brief, “[s]urely there is no one who does not recognize, if
he thinks at all, that natural products may well be present, such as bones
in fish and meat and pits in olives and seeds in oranges.”
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We are unable to attribute any more to the Brown v. Nebiker decision
than a recognition that, when pork chops are served in their natural state
with the bone left in the meat, the presence of bone fragments must be
anticipated. The opinion sheds little light on the requirements placed on a
seller of food products in various stages of preparation or processing. We
share the views expressed by the Wisconsin Supreme Court with regard to
this matter:
The “foreign-natural” test . . . does not recommend itself
to us as being logical or desirable. It is true one can expect a
T-bone in T-bone steak, chicken bones in roast chicken, pork
bone in a pork chop, pork bone in spare ribs, a rib bone in
short ribs of beef, and fish bones in a whole baked or fried fish,
but the expectation is based not on the naturalness of the
particular bone to the meat, fowl, or fish, but on the type of
dish served containing the meat, fowl, or fish. There is a
distinction between what a consumer expects to find in a fish
stick and in a baked or fried fish, or in a chicken sandwich
made from sliced white meat and in roast chicken. The test
should be what is reasonably expected by the consumer in the
food as served, not what might be natural to the ingredients of
that food prior to preparation.
Betehia v. Cape Cod Corp., 103 N.W.2d 64, 68-69 (Wis. 1960). Other courts
espousing this view include Zabner v. Howard Johnson’s, Inc., 201 So. 2d
824, 826 (Fla. Ct. App. 1967); Phillips v. Town of West Springfield, 540
N.E.2d 1331, 1332-33 (Mass. 1989); O’Dell v. DeJean’s Packing Co., 585
P.2d 399, 402 (Okla. Ct. App. 1978). It is also the view expressed in
Restatement (Third) of Torts: Product Liability section 7, comment b
(product danger to be determined by reference to reasonable consumer
expectations within the relevant context of consumption).
We find the principle applied by the Wisconsin court in Betehia with
respect to restaurant food to be equally applicable to situations involving
processed foods contained in cans or jars. In Bryer v. Rath Packing Co., 156
A.2d 442 (Md. Ct. App. 1959), a child’s throat was injured by a chicken
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bone while she was eating chow mein in a school cafeteria, which had
purchased the chow mein in sealed cans from the defendant food processor.
The trial court directed a verdict in favor of the defendant. In reversing that
judgment, the Maryland Court of Appeals stated:
The obligation of the packer of food to the ultimate
consumer is to exercise such care in its preparation that the
product will not cause injury to the consumer, and the amount
of care that is required is commensurate with the danger to the
life or health of the consumer that may foreseeably result from
such lack of care. In the instant case the packer of the chicken
set its own standard of care and increased the necessary
amount of care by expressly representing on the cans sold that
the product was ready to serve and boned. By its advertising it
was saying to the ultimate consumer that this was chicken
from which the bones had been removed, and this assurance
which it must have foreseen would be relied on (as indeed it
was in the case before us, as the cafeteria manager explicitly
testified), required it to exercise as much care as would enable
users to rely with reasonable safety on the assurance. This is
not to say that the packer was an insurer, for it is clear, and
agreed, that in the form of action brought it is not. The
question is whether due care was exercised under the
circumstances.
Bryer, 156 A.2d at 446. Similar reasoning was applied in Wood v. Waldorf
System, Inc., 83 A.2d 90, 93 (R.I. 1951), a case involving a chicken bone in a
can of chicken soup.
We are satisfied that, in the case of processed foods, consumers may
develop reasonable expectations that certain components of food products
in their natural state that serve to impede human consumption will be
removed. Specifically, we believe that the purchaser of pimento-stuffed
olives may reasonably anticipate that the olive pits have been removed. We
need not decide whether this expectation would create an implied warranty
of merchantability because such a claim is precluded by statute in the
present case. We are convinced, however, that a seller of stuffed olives
must be cognizant that consumers will assume that the olives will be free
from pits and act on that assumption in consuming the product.
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Consistent with that expectation, a seller must exercise reasonable care to
assure that this expectation is realized. The district court erred in rejecting
plaintiff’s negligence claim by reliance on the natural component principle
that was applied in Brown v. Nebiker.
In reviewing the motion papers to ascertain whether issues of
material fact otherwise remain concerning plaintiff’s negligence claim, we
are satisfied that it does not appear that defendants were in any manner
negligent in the processing of the olives that contained the pit that caused
harm to the plaintiff. We conclude, however, that a genuine issue of
material fact does exist with respect to plaintiff’s claim that defendants were
negligent in not warning against the possible presence of pits or pit
fragments in the jar of olives.
Defendants’ quality control officer testified in his deposition that the
pitting process is not one hundred percent effective. He indicated that the
presence of an occasional pit or pit fragment in the stuffed olives is
inevitable because the machine that does the pitting will fail to remove a pit
if the olive has an abnormal shape. Given this circumstance, we conclude
that a trier of fact might find that reasonable care by a wholesale seller of
stuffed olives would include providing a warning on the label that pits or pit
fragments might be encountered. A claim based on that theory should have
survived summary judgment.
We have considered all issues presented and conclude that the
district court’s ruling dismissing the strict-liability claim and the claims
based on express and implied warranty should be affirmed. The ruling
dismissing the negligence claims on theories other than a failure to warn is
also affirmed. We reverse the ruling dismissing the negligence claim based
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on a failure to warn and remand the case to the district court for further
proceedings on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.