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In re Shigellosis Litigation6/18/2002
for summary judgment on strict-liability grounds. Horse & Hunt admitted it had sold food contaminated by shigella but opposed the entry of summary judgment until the relative fault of the co-defendants was resolved at trial. The court granted summary judgment against Horse & Hunt but stayed entry of judgment until the conclusion of the trial among the co-defendants.
Horse & Hunt's contribution-and-indemnity claim against Sunridge was tried to a jury. Horse & Hunt requested jury instructions on strict liability for manufacturing defects (CIVJIG 75.30), negligence of a seller of goods (CIVJIG 75.35), per se negligence based on violation of federal food statutes (CIVJIG 25.45), and implied warranty of merchantability (CIVJIG 22.25, .55). The court declined to instruct on the negligence of a seller, and on breach of warranty on the basis that this claim merged into the strict-liability and negligence claims.
By special verdict, the jury found that the parsley was defective and unreasonably dangerous, Sunridge sold the contaminated parsley but did not manufacture or exercise significant control over it, Grupo Pas manufactured the parsley and was negligent in manufacturing it, and Horse & Hunt was not negligent in using the parsley. Even though the jury found only Grupo Pas at fault, the jury assessed fault to Sunridge (27%), Grupo Pas (65%) and Horse & Hunt (8%). The district court concluded that Horse & Hunt was not entitled to recover against Sunridge and found that the apportionment of fault was inconsistent with the other answers.
Horse & Hunt moved for JNOV and a new trial. The district court denied all post-trial motions. The court confirmed the arbitration awards and ordered Horse & Hunt to fund the awards. Horse & Hunt appeals from the denial of posttrial motions and from the order granting summary judgment to Bix.
ISSUES
Can a commercial seller in a strict-liability action be dismissed under Minn. Stat. § 544.41 before a complaint has been filed against the certified manufacturer?
Can a commercial seller be liable for negligence in selling contaminated produce if no standard of care for a produce purchaser and reseller has been established?
Did the district court err in declining to grant JNOV?
ANALYSIS
The multiple causes of action and the results of pretrial motions have created confusion among the parties. In the appellate submissions, the jury instructions, and the district court memoranda, Horse & Hunt has been misidentified as the "plaintiff," and other references indicate that Horse & Hunt has brought claims of strict liability or negligence against the other defendants.
For purposes of clarity in analysis and in subsequent proceedings, we emphasize that the claims among Horse & Hunt, Bix, and Sunridge are claims among co-defendants for contribution and indemnity. See Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 366-68 (Minn. 1977) (noting indemnity generally shifts loss away from faultless party who is nevertheless liable in tort); City of Wilmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn. 1994) (stating contribution "not based upon contract or tort, * * * but on one party paying more than its fair share of a common liability").
I.
Horse & Hunt, in its notice of appeal, seeks review of the summary judgment in favor of Bix. In its brief, Horse & Hunt has shifted its focus to argue that Bix should be reinstated in the action under the seller's-exception statute, Minn. Stat. § 544.41, and required to contribute to the arbitration fund for the affected consumers. B
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