This case involves both contract and tort claims resulting from the plaintiff breaking a tooth upon biting into an olive with the pit inside. The plaintiff opened a jar of “minced pimento stuffed” olives and used some of the olives on a salad. Upon eating the salad, the plaintiff bit down onto an olive pit (or fragment) and fractured a tooth. The defendant imported the olives from Spain. They were shipped to the U.S. in 150-kilogram drums to Virginia, where the drums were emptied and the olives washed and put in glass jars for retail sale. When the defendant receives the olives they are inspected for general appearance, pH and acid level, but they were not checked for the presence of pits. That was done in Spain. The plaintiff sued on numerous theories – negligence, strict liability and breach of express and implied warranty. The trial court granted summary judgment for the defendant on all of the plaintiffs’ claims. The plaintiff appealed.
On further review, the Iowa Supreme Court upheld the trial court on the strict liability and implied warranty issues. Iowa law (Iowa Code §613.18(1)) pins liability on the manufacturer or assembler in a products liability or implied warranty of merchantability case (where a defective product is involved) rather than the wholesaler, distributor or retail seller of the product. Here the defendant was immune from suit on strict liability or implied warranty of merchantability grounds because the defendant was the retail seller of the olives. The defendant claimed that the defendant was an “assembler,” but the court held that the defendant’s repackaging activity fell short of “assembly. ” The defendant argued in the alternative that olives are not “products” (and, thus, the immunity for retail sellers of “products” didn’t apply) because they weren’t produced by human action. The court easily dismissed that claim, noting that human action does play a role in the growing of olives and that agricultural commodities are products potentially subject to a product liability action.
As for the plaintiff’s express warranty claim - that the label “minced pimento stuffed” created an express warranty that the olives were 100 percent stuffed (i.e. , had the pits removed so that they could be stuffed), the court noted that the industry standard was to mechanically remove the pits and that the process is not 100 percent effective. In addition, the USDA standard for pitted olives allows 1.3 pits (or pit parts) per 100 olives. So, the reasonable interpretation of the label was that the olives would pass as merchantable without objection in the trade, not that they were 100 percent pit-free.
The negligence claim was a different matter, however. The court reasoned that consumers may reasonably anticipate that olive pits have been removed from “stuffed olives. ” Accordingly, a seller must exercise reasonable care to assure that this expectation is realized. Thus, a genuine issue of material fact existed as to whether the defendant was negligent in not warning against the possible presence of pits or pit fragments in the olives. The defendant’s quality control officer testified that the pit removal process was not always effective. Thus, a jury could find that reasonable care by a wholesale seller may involve the inclusion of warning language on the olive jar’s label that pits or pit fragments might be encountered. The case was remanded to the trial court to address that issue. Kolarik v. Cory International Corp, et al. ,721 N.W.2d 159 (Iowa Sup. Ct. 2006).