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, §
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 §
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.,
Id., at 406,"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."
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.
(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."
Delchamps asserts that the summary judgment was proper because, it says, no private right of action exists under the *1068
F.D.C.A.,
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.,
This Court has adopted the "reasonable expectations" test for determining if food is unmerchantable or unreasonably dangerous. Cain,
"[C]onsumers do not generally expect raw fruits and vegetables that have the appearance of freshness to contain preservatives. In addition, because the majority of raw fruits and vegetables sold in grocery stores are sold in bulk and are not usually labeled, consumers are not likely to associate raw produce with the presence of preservatives such as sulfating agents."
Delchamps asserts that this case is different fromCain because in Cain the summary judgment on the AEMLD claim was based *1069
on the trial court's finding that the AEMLD did not apply, whereas in this case, Delchamps says, the summary judgment on the AEMLD claim was based on evidence establishing a lack of causal relation. To establish the defense of a lack of causal relation, the defendant may show "that there is no causal relation in fact between his activities in connection with handling the product and its defective condition." Atkins v.American Motors Corp.,
Id."[T]hat he is in the business of either distributing or processing for distribution finished products; he received a product already in a defective condition; he did not contribute to this defective condition; he had neither knowledge of the defective condition, nor an opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer."
While Delchamps showed that it is in the business of distributing finished products, that it received a product already in a defective condition, and that it did not contribute to the defective condition, it, nevertheless, did not show conclusively that it did not possess an "opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer." Id. The plaintiffs showed that Delchamps did inspect for freshness and quality and did have procedures for requiring its suppliers to certify compliance with other regulations regarding insecticides and pesticides. Whether Delchamps's opportunity to discover or to know of the defect is superior to that of the consumer is a genuine issue of material fact; therefore, the court erroneously entered the summary judgment as to the AEMLD claim. Delchamps is entitled to present evidence and to argue that there was no causal relation between what it did or failed to do and Mrs. Allen's injuries, but it must do so to the factfinder.
Delchamps asserts that Mrs. Allen is a member of a very small or insignificant number of people who could be affected by sodium bisulfite and, therefore, that it cannot be held liable for breach of the implied warranty of merchantability. InGriggs v. Combe, Inc.,
Based on the foregoing, we reverse the summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.