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In re Shigellosis Litigation6/18/2002
quested judgment; instead, the jury findings on the statutory violation and causation are nonexistent. After reviewing the record, we find that although Horse & Hunt requested a jury instruction on per se negligence that included the relevant federal food statutes, Horse & Hunt did not request a corresponding special-verdict question tailored to discovering whether the federal food statute had been violated and whether such violation was causally connected to the consumer claims, and requiring the jury to include any causal negligence in its apportionment. When the requesting party has not submitted the issue to the jury and fact issues appropriate for jury resolution remain, it is improper for the district court to grant JNOV. See Hartz v. Nelson (In re Estate of Hartz), 437 N.W.2d 749, 752 (Minn. App. 1989) (noting failure to object to special verdict prior to jury submission constitutes waiver).
Second, we are not convinced that the federal food statute at issue establishes a seller's standard of care that supplants the principles of strict liability and negligence developed in modern product-liability law. The statute that Horse & Hunt claims was violated prohibits certain acts:
§ 331. Prohibited acts
The following acts and the causing thereof are prohibited:
The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded.
The adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce. 21 U.S.C. § 331(a)(b).
This section of the Food, Drug and Cosmetic Act also permits the government to enforce these provisions through the use of injunctions, criminal penalties, and civil fines. See id. at § 332(a) (permitting injunction of most prohibited activities); § 333(a) (permitting imprisonment, criminal fines, and civil penalties for prohibited acts). It does not indicate that the prohibited-act standard gives rise to a civil action.
Violation of a statute may constitute per se negligence. Scott v. Indep. School Dist. 709, 256 N.W.2d 485, 488 (Minn. 1977). If a statute defines the fixed standard of care and violation of the statute is conclusive evidence of negligence, the statute creates per se negligence. Id. In determining whether a statute creates a standard of care, we consider the purpose of the statute and the interests it is intended to protect. Id.
Not all statutes supplant the common-law standard of care for a negligence action. For example, a landlord's violation of the Uniform Building Code is not per se negligence unless the landlord, among other things, knew or should have known of the violation and failed to take reasonable steps to remedy the violation. Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn. 1996). Failing to characterize the statutory standard as per se negligence does not leave the injured person without a remedy, but links negligence with established common law standards. Id. at 694-95; see also Mpls. Employees Ret. Fund v. Allison-Williams Co., 519 N.W.2d 176, 182-83 (Minn. 1994) (refusing to supplant longstanding common-law negligence standard of care applicable to brokers with statutory standard in the Minnesota Securities Act).
The federal food statute does not require a food seller to perform an affirmative act such as periodic testing of purchased produce or periodic inspections of the sources of produce. Instead, the provision prohibits the introduction of adulterated food into interstate commerce. If we interpreted this prohibition to establish a statutory negligence standard of care applicable to food sellers, the simple act of selli
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