AMI 1007 Products Liability—Negligence—Duty of Vendor of Food

“The retailer is not a guarantor…. He must exercise such care as a person of ordinary prudence would exercise under the same or similar circumstances for the protection of customers against impurities or contamination that would be discoverable by the exercise of such care.” H.J. Heinz Co. v. Duke, 196 Ark. 180, 116 S.W.2d 1039, 1042 (1938). See Kraft-Phenix Cheese Corp. v. Spelce, 195 Ark. 407, 113 S.W.2d 476 (1938) (applying this standard to dealer when plaintiff complained of injury from eating sandwich spread containing glass); Green v. Wilson, 194 Ark. 165, 105 S.W.2d 1074 (1937) (dismissing plaintiff's claim against retailer of allegedly defective pie because there was insufficient evidence of a violation of this duty; plaintiff observed pie taken from original packaging of the manufacturer and cut by the retailer); Kroger Grocery & Baking Co. v. Melton, 193 Ark. 494, 102 S.W.2d 859 (1937) (examining the level of proof necessary to support an inference of the retailer's negligence); Lewis v. Roescher, 193 Ark. 161, 98 S.W.2d 956 (1936) (applying this standard); Kroger Grocery & Baking Co. v. Turner, 193 Ark. 227, 100 S.W.2d 82 (1936) (affirming verdict against retailer when evidence demonstrated the product was unwholesome, the product was the cause of plaintiff's illness, and the retailer knew of product's unwholesome character before the sale).

In the handling or sale of standard packaged goods, inspection is not required, expected, or anticipated by the dealer when such inspections could not be made without destroying or damaging the package's protective coverings. Great Atlantic & Pac. Tea Co. v. Gwilliams, 189 Ark. 1037, 76 S.W.2d 65, 69 (1934). See also Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750 (1994) (reversing and dismissing a judgment against the manufacturer, concluding that larvae present in the packaged and prepared product were not enough to assign liability to the manufacturer when evidence was insufficient to show product was in a defective condition at the time it left the care, custody, and control of the manufacturer); Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 57 S.W.2d 1029 (1933) (buyer of bottled soft drink containing partially decomposed centipede had no cause of action against seller for not inspecting bottle).

The duty of the seller of animal food is the same. Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W.2d 869 (1943).