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In re Shigellosis Litigation6/18/2002
who failed to inspect grab bar on tractor it sold); Erickson v. American Honda Motor Co., 455 N.W.2d 74, 77-78 (Minn. App. 1990), review denied (Minn. July 13, 1990) (holding evidence supported finding of negligence against a dealer who sold an all-terrain vehicle without providing a safety brochure and video and without showing location of owner's manual). A seller may also be liable in negligence for failure to discover a product defect if the seller knows, or has reason to know, that the product is dangerous. Gorath, 441 N.W.2d at 132 (citing Restatement (Second) of Torts § 402). The negligence of the seller would then be compared with the negligence or strict liability of the manufacturer. See Busch v. Busch Constr., Inc., 262 N.W.2d 377, 393-94 (Minn. 1977) (noting ordinary negligence may be compared with strict liability of manufacturer). Thus, theoretically Sunridge could be liable to the affected consumers for negligence.
Horse & Hunt claims that Sunridge failed to use reasonable care in determining whether the parsley it sold was produced under hygienic conditions. Again, this is theoretically possible. But our review of the record shows that Horse & Hunt failed to produce evidence establishing a relevant standard of care applicable to purchasers and resellers of produce. Horse & Hunt presented expert testimony through a food technologist. But in response to cross-examination, the technologist acknowledged that no governmental regulations require a produce purchaser to investigate the growing methods of its produce suppliers; the industry does not have a routine standard for produce purchasers to investigate the growers or visit farms that grow the produce; in general, the produce purchasers who require specific standards for produce farms are very large and typically own or lease their own farms; and testing of produce does not guarantee the purity of the produce because testing involves only one segment of the truckload. The technologist also admitted that he had no knowledge of the methods used in purchasing produce from Mexico, whether farm inspections are allowed in Mexico, and whether the United States government plays any role in inspecting and testing produce imported from Mexico.
Because Horse & Hunt failed to establish a standard of care applicable to Sunridge as a purchaser and reseller of fresh produce, we hold that the district court's failure to instruct the jury on negligence of a seller and to submit a special-verdict question was harmless error.
III.
Judgment notwithstanding the verdict is proper when a jury verdict has no reasonable support in fact or is contrary to the law. Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990). Horse & Hunt appeals the denial of its request for JNOV on three grounds.
A.
Horse & Hunt requested JNOV on its claim that Sunridge is per se negligent for introducing adulterated food into interstate commerce, an act prohibited by the federal Food, Drug and Cosmetic Act. See 21 U.S.C. §§ 331, 342 (1994 & Supp. V 1999). This issue fails on both procedural and substantive grounds.
First, the special verdict contains no findings on whether Sunridge violated the federal food statute and whether the alleged violation has a causal connection to the affected consumers' claims. Yet Horse & Hunt asked the district court to enter judgment on the per se negligence claims for violating federal food statutes.
JNOV is essentially a procedural device through which the court substitutes its judgment for the jury's verdict. 1A David Herr & Roger Haydock, Minnesota Practice, § 50.10 (West 1998). But the jury findings are not contrary to the re
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