Almquist v. Finley School District
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 21091-0-III
Title of Case: Alan Almquist and Gerri Almquist, et al
v.
The Finley School District No. 53, et al
File Date: 11/21/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Benton County
Docket No: 99-2-01123-3
Judgment or order under review
Date filed: 04/12/2001
Judge signing: Hon. Craig J. Matheson
JUDGES
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Authored by Dennis J. Sweeney
Concurring: Kenneth H Kato
Frank L. Kurtz
COUNSEL OF RECORD
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Counsel for Appellant(s)
William R. Hickman
Pamela A. Okano
Reed, McClure
601 Union Street, Suite 4901
Seattle, WA 98101-3920
Gerald J. Moberg
Attorney at Law
451 Diamond Drive
Ephrata, WA 98823
Diehl R. Rettig
Rettig, Osborne, Forgette, O'Donnell
6725 W. Clearwater Avenue
Kennewick, WA 99336-1788
Counsel for Respondent(s)
William D. Marler
Bruce T. Clark
Denis W. Stearns
Marler, Clark
701 Fifth Avenue, Suite 4301
Seattle, WA 98104
Charles K. Wiggins
Kenneth W. Masters
Wiggins Law Office
241 Madison Avenue N.
Bainbridge Island, WA 98110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALAN ALMQUIST and GERRI ) No. 21091-0-III
ALMQUIST, husband and wife, )
individually, and as co- )
Guardians ad litem, for ALAN )
WAYNE "A.J." ALMQUIST, a minor; )
JOSEPH CHRISP and ALICIA )
CHRISP, husband and wife, )
individually, and as co- )
Guardians ad litem, for SHAYLA )
CHRISP, a minor; FRANK HALL and )
SHERRI HALL, husband and wife, )
individually, and as co- ) Division Three
Guardians ad litem, for KEVIN ) Panel Nine
FISK, a minor; GARY HENDERSON )
and DEBBI HENDERSON, husband )
and wife, individually, and as )
co-Guardians ad litem, for )
JACQUELINE deBIT, a minor; JOHN )
MAXWELL and DONNA MAXWELL, )
husband and wife, individually, ) PUBLISHED OPINION
and as co-Guardians ad litem, )
for FAITH MAXWELL, a minor; )
DOUG OQUIST and TAMI OQUIST, )
husband and wife, individually, )
and as co-Guardians ad litem, )
for ARIEL OQUIST, a minor; CARL )
PARIS and LORRI KANEASTER, )
husband and wife, individually, )
and as co-Guardians ad litem, )
for ZACHARY PARIS, a minor; )
ROBERT VOSS and REGINA VOSS, )
husband and wife, individually, )
and as co-Guardians ad litem, )
for JACQUELYNN VOSS, a minor; )
KEN COX and KELLY COX, husband )
and wife, individually, and as )
co-Guardians ad litem, for )
JORDEN COX, a minor; ZENE and )
SHELLEY STILLAR, husband and )
wife, individually, and as co- )
Guardians ad litem, for )
KIMBERLY PRICE, a minor; PERRY )
and CARRIE SCOTT, husband and )
wife, individually, and as co- )
Guardians ad litem, for KELLEY )
M. SCOTT, a minor, )
)
Respondents, )
)
v. )
)
THE FINLEY SCHOOL DISTRICT NO. )
53, a local governmental )
entity, )
)
Appellant, )
)
NORTHERN STATES BEEF, a foreign
corporation,
Defendant.
SWEENEY, J.--The Washington Product Liability Act (Product Liability
Act or Act) imposes strict liability on the manufacturer of a defective
product. RCW 7.72.010(4); Hyjek v. Anthony Indus., 133 Wn.2d 414, 944 P.2d
1036 (1997). The Finley School District No. 53 prepared and sold tacos
tainted with E. coli1 0157:H7 bacteria. We conclude that the Product
Liability Act applies to the sales of tacos from a school and that
processing frozen ground beef into cooked tacos constitutes 'manufacturing'
as defined by the Act. We further hold that the Act imposes liability for
a secondary victim--one who did not eat the tainted product but contracted
E. coli poisoning from someone who did. We therefore affirm the judgment
entered on the jury's verdict.
HISTORY
The Finley School District prepared and served a taco lunch for its
students using frozen ground beef supplied by Northern States Beef. The
District thawed and cooked the meat; drained off the fat and rinsed the
meat; added refried beans, tomato paste, and seasonings; and mixed it up.
It then delivered the meat mixture in pans to the schools, including Finley
Elementary, for distribution from cafeterias.
Eleven children became infected with E. coli 0157:H7 bacteria in
October 1998. Ten attended Finley Elementary. The eleventh was a two-year-
old playmate of two of the affected students. The Benton-Franklin Health
District investigated. Members of the Washington State Department of
Health and the National Centers for Disease Control joined the
investigation. Dr. John Kobayashi, epidemiologist for communicable
diseases for the Washington State Department of Health, headed the
investigation. The investigative team concluded:
As no other common school activity was identified other than eating at the
school cafeteria, it is reasonable to conclude that a meal served at the
school was the likely source of illness. Cattle are the known reservoir of
E. coli 0157:H7. Thus, it is likely that consuming the ground beef served
in the tacos was the vehicle.
Ex. 1 at 7. The team concluded that the taco meal was the 'most probable
source' of the outbreak--meaning a greater than 50 percent certainty.
Report of Proceedings (RP) at 172.
The team concluded that two-year-old Faith Maxwell was a 'secondary
case.' Ex. 1 at 9. Secondary cases often result from fecal-oral
contamination. They generally make up from 1 to 10 percent of the cases
caused by an outbreak. Faith spent considerable time with two children who
ate the taco meal in question, one of whom had a confirmed case of E. coli
poisoning. One of the children also spent the night at Faith's house and
played with her, including dressing her up. Faith's treating physician
diagnosed her with E. coli linked to the outbreak caused by the taco meal.
Other investigators supported his conclusion.
PROCEEDINGS
The parents of the afflicted children (Plaintiffs) sued the District
and Northern States Beef. They alleged that both the District and Northern
States were manufacturers of a product (the taco filling) that was not
reasonably safe. As such, both were strictly liable under the Product
Liability Act for the children's harm.
Northern States Beef settled and was dismissed.
Plaintiffs moved for summary judgment against the District on the
issue of liability. The trial court ruled as a matter of law that the
defective 'product' for the purposes of the Act was the taco filling, not
the frozen meat, and that the District's processing of frozen hamburger
into cooked taco filling made it a 'manufacturer' under the Act. As such,
it held that the District was strictly liable if the taco meals caused the
E. coli outbreak. The two latter questions (whether the food was tainted
and whether the tainted food was the cause of the outbreak) were left for
the jury. The court granted the District's motion to bifurcate the
proceedings on liability and damages. The case then went to the jury on
the limited issue of whether the District's taco lunch contained E. coli
and caused the children's harm. Clerk's Papers (CP) at 646-49.
Plaintiffs' proof showed that the E. coli outbreak was caused by the tacos
served at Finley Elementary on October 6. The District's proof showed that
its cooking procedures were more than adequate to kill any potential
pathogens, including E. coli. The jury was then asked to answer three
questions: whether the taco filling contained E. coli; if so, whether that
caused each plaintiff's illness; and, if so, what percentage of fault
should be allocated to the District and the supplier.
The jury found that the taco meal did contain E. coli and was the
cause of the plaintiffs' injuries. It found the District 100 percent at
fault and Northern States Beef not at fault.
DISCUSSION
I. Was the District a 'Product Manufacturer' under the Washington Product
Liability Act?
The Act holds manufacturers of defective products strictly liable for
resulting injuries. A 'product' is an object 'produced for introduction
into trade or commerce.' RCW 7.72.010(3). A 'manufacturer' is any seller
of the product who 'designs, produces, makes, fabricates, constructs, or
remanufactures the relevant product or component part of a product before
its sale to a user or consumer.' RCW 7.72.010(2). This includes an
original creator or intermediate seller who does more than merely pass
along, unchanged, a previously packaged product. But the Act expressly
excludes from 'product seller' a provider of professional services. That
is, one 'who utilizes or sells products within the legally authorized scope
of the professional practice of the provider.' RCW 7.72.010(1)(b). The
District argues at the outset that it falls within this exclusion as a
professional provider of educational services.
But at trial the District argued that the relevant product was the
frozen ground beef and Northern States was the only manufacturer. The
District argued it was a mere 'product seller,' at best, because it did not
modify this product. And, finally, as a non-manufacturing seller, the
District was not strictly liable. The trial judge rejected these arguments
based on his reading of the Act.
A. Applicability of the Act.
The District now contends that there was no 'product,' of any kind,
for the purposes of the Act because the lunches were sold only to school
students and staff and not offered to the public at large. Therefore, the
argument goes, it produced nothing for introduction into 'trade or
commerce.' But we can find no such argument in this trial record.
Simply put, these substantial legal theories advanced on appeal were
not urged upon the trial judge in the first instance. We need not
entertain them for the first time here. Our approach is well founded and
routinely applied.2 Issues cannot, with only limited exceptions, be raised
for the first time on appeal. RAP 2.5(a);3 Wells v. W. Wash. Growth Mgmt.
Hearings Bd., 100 Wn. App. 657, 681, 997 P.2d 405 (2000). The District
argued during the summary judgment proceeding on liability that it was not
a manufacturer because the product was frozen meat. The District was then
a consumer or, at most, a nonmanufacturing product seller. CP at 903-09.
It made no argument that it was not engaged in trade or commerce and that
no product therefore came into being. Nor did it argue that it was exempt
from liability as a professional services provider. CP at 903-09; CP at
438-41.
Throughout the summary judgment proceeding, counsel for the District
repeatedly referred to the meat as the product:
So I think you have to go back to taking the big picture and look at it,
and the big picture to look at it is there has to be something that the
retailer does that qualifies as manufacturing, modification, something like
that. And there just isn't in this case.
So what happens is, and the statute I think is fairly well crafted and I
think really ideally fits in this case and I think may not make a
difference practically in the end, because what the statute says is, 'All
right. If you're not a manufacturer but you're a retailer, you can still
be liable. You can be liable for your negligence, that is, 'We didn't cook
it hot enough,'' which is entirely the case that the plaintiff has made out
against the district is that they are negligent because they didn't cook
out whatever {E. coli} 0157:H7 was in the product or that we cross
contaminated, which would be negligent actions which would clearly fit
under the statute as making us as a nonmanufacturing retailer liable, if
that was proven. That's the very issue that I believe that this jury is
entitled to review is that what, if anything, did the district do that
would have made this product through its negligence a harmful product?
Because we inherited the product how it was.
RP (Dec. 14, 2000) at 10-11 (emphasis added).
In posttrial proceedings following the adverse liability verdict, the
District moved for a new trial, arguing that victim Faith Maxwell did not
fall within the purview of the Act because she had no contact with the
product. CP at 104-08. Again, the District did not challenge the
application of the Act to either the product or itself as a product seller
at trial.
We also need not entertain arguments that are patently inconsistent
with the positions advanced at trial. Kohl v. Zemiller, 12 Wn. App. 370,
373, 529 P.2d 861 (1974).
That said, and in consideration of the public interest aspects of this
case, we would conclude that the lunch was a product, in any event.
The District relies on McKenna v. Harrison Memorial Hospital for the
proposition that, if the sale or distribution of a product is strictly
incidental to the dispensing of professional services, the distributor is
not subject to the Product Liability Act. McKenna v. Harrison Mem'l Hosp.,
92 Wn. App. 119, 121-22, 960 P.2d 486 (1998). McKenna is distinguishable.
There, a surgeon implanted a medical device, secured by screws and rods, in
a patient's back. The court held that the device, including the screws and
rods, was part and parcel of the professional services and not, therefore,
subject to the Product Liability Act. Id. at 121, 124-25.
But here, the lunch was a stand-alone product. It was sold independently
of any professional service. The District thawed, cooked, rinsed, drained,
seasoned, and assembled taco filling from frozen ground beef. 'Products'
parallel to the medical device in McKenna for a school district might be
rulers, pencils, paper, or chalk, distributed for a fee, incidental to the
provision of educational services. So, for example, if the McKenna
hospital cafeteria had sold tainted tacos, the distribution of those meals,
while certainly incidental to the primary function of a hospital, would
nonetheless have been the sale of a product.
When an organization such as an educational institution, medical
institution, or research institution also provides food for a fee, we are
not prepared to hold that those sales are so intricately tied to the
provision of 'services' that they are exempt from the Product Liability
Act.
B. Manufacturer.
Next, the District repeats its trial contention that the relevant
'product' was the frozen ground beef. And Northern States was therefore
the sole 'manufacturer.'
Statutory construction is a question of law so review is de novo.
Cockle v. Dep't of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001).
We try to effect legislative intent. Id. And we try to avoid unlikely,
absurd, or strained results. City of Walla Walla v. Topel, 104 Wn. App.
816, 820, 17 P.3d 1244 (2001).
On the merits, the District denies that it was a 'manufacturer' as
defined by the Product Liability Act, in any event. Procedurally, the
District argues that this is a fact question for the jury and should not,
therefore, have been resolved as a question of law.
As to the District's argument that the question is one of fact, we
note that the material facts here were not disputed. The District conceded
that it stored, thawed, cooked, drained, rinsed, seasoned, and mixed what
started out as frozen ground beef. The question of what legal consequences
might flow from these activities--whether this constitutes manufacturing--
was then properly decided by the court as a matter of law. See, e.g.,
Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 736, 844 P.2d 1006 (1993).
Under the Act, a ''manufacturer' includes a product seller who
designs, produces, makes, fabricates, constructs, or remanufactures the
relevant product or component part of a product before its sale to a user
or consumer.' RCW 7.72.010(2). Since the relevant synonyms are not
defined by the statute, we give them their dictionary definition. Washburn
v. Beatt Equip. Co., 120 Wn.2d 246, 259-61, 840 P.2d 860 (1992).
To 'design' includes 'the process of selecting the means and
contriving the elements, steps, and procedures for producing what will
adequately satisfy some need.' Webster's Third New International
Dictionary 611 (1993). To 'produce' means 'to give being, form, or shape
to: make often from raw materials.' Webster's, at 1810. 'Make' includes
'to bring (a material thing) into being by forming, shaping, or altering
material.' Webster's, at 1363. 'Fabricate' includes 'to form into a whole
by uniting parts.' Webster's, at 811. 'Construct' includes 'to form,
make, or create by combining parts or elements.' Webster's, at 489.
Here, the District began the process with 180 pounds of frozen ground
beef. The frozen beef was thawed and then cooked in a steam kettle. Once
cooked, the fat was drained off. The meat was rinsed. And refried beans,
tomato paste, and seasonings were added. The taco meat was later scooped
onto a tortilla along with other condiments and side dishes and then
served.
The District thus had a 'design' for cooking this meat--its recipe.
It made taco meat by combining ground beef with other ingredients. It then
used the taco meat as part of its taco lunch. The District's cooking
process falls neatly into each of the definitions for 'produce,' 'make,'
Sfabricate,' and 'construct.' Webster's, at 1810, 1363, 811, 489.
The District was not merely a retailer. The reason for excluding
nonmanufacturing retailers from strict liability is to distinguish 'between
those who have actual control over the product and those who act as mere
conduits in the chain of distribution.' Buttelo v. S.A. Woods-Yates Am.
Mach. Co., 72 Wn. App. 397, 404, 864 P.2d 948 (1993). The District did not
simply resell frozen ground beef, seasonings, and tortillas as a grocery
store would. It took raw ingredients and made a taco lunch out of them.
It then sold them.
The District is a manufacturer--a manufacturer of tacos.
II. Proximate cause of Faith Maxwell's injuries
Proximate cause is generally a question of fact. Hertog v. City of
Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Proximate cause consists
of two elements--cause in fact (but-for cause) and legal causation (legal
policy). Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d
749 (1998).
Cause in fact is based on a 'physical connection between an act and an
injury' and is determined by the trier of fact. Id.; Hartley v. State, 103
Wn.2d 768, 778, 698 P.2d 77 (1985). Cause in fact requires a direct
unbroken sequence between some act and the complained of event. Hertog,
138 Wn.2d at 282-83. This is generally a question for the jury.
Legal cause, on the other hand, reflects policy determinations as to
how far the consequences of a defendant's acts should extend. Schooley,
134 Wn.2d at 478; Hartley, 103 Wn.2d at 779. Legal cause is a question of
law. Schooley, 134 Wn.2d at 478.
A. Cause in Fact.
The District first says that there is not enough evidence here for a
jury to find that the taco meal caused (nonstudent) Faith Maxwell's
illness.
Faith's treating physician, Dr. Phillip Tarr, testified that:
In {view} of the high-frequency of infections the time-space cluster
of infections in the Finley area during the week or weeks preceding her
transfer to Children's, I would have - I would come to the conclusion that
she was part of that same time-space cluster. The exact mechanism of her
infection would be beyond my ability to render an opinion.
RP at 88-89. Dr. Kobayashi agreed with Dr. Tarr that Faith's illness was
part of the same time-space cluster of the Finley E. coli outbreak. He
testified that the connection between the product and Faith's illness
satisfied the definition of a probable case. RP at 202.
Dr. Andrew Pavia testified that 'it is extremely likely that Faith was
a secondary case that resulted from the outbreak at Finley Elementary
School.' RP at 331. Dr. Russell Alexander testified:
Q. Are you aware that Dr. Kobayashi, Dr. Tarr, Dr. Pavia have all
testified that on a more-likely-than-not basis that Faith Maxwell is a
secondary case tied to this outbreak?
A. I know they have said that, and I would agree.
RP at 624.
Secondary cases are not uncommon, generally making up 1 to 10 percent of
the total cases in any outbreak. RP at 623-24. Secondary infection
generally results from person-to-person contact, most often via the fecal-
oral route. RP at 88, 201-02, 245, 248.
To conclude that this is how Faith was infected is more than mere
speculation. Faith spent time with two children who ate the taco meal.
One had a confirmed case of E. coli infection. An infected child spent the
night at Faith's house and played with her, including dressing her up like
a baby.
These facts are consistent with the experts' description of the typical
secondary infection. And the District offered no plausible alternative
explanation for her illness. The jury then had adequate evidence from
which to infer that Faith's illness was caused in fact by the tainted taco
meal. Hanson v. Estell, 100 Wn. App. 281, 286, 997 P.2d 426 (2000).
B. Legal Cause.
The District's legal causation challenge also relies on the fact that
Faith did not have contact with the product. The District contends that
the Act does not then accommodate her cause of action.
The Act defines a claimant as 'any person or entity that suffers
harm.' RCW 7.72.010(5). It also states: 'A claim may be asserted under
this chapter even though the claimant did not buy the product from, or
enter into any contractual relationship with, the product seller.' RCW
7.72.010(5). For us, this includes Faith's claim. And recent case law
supports this.
In McCoy v. American Suzuki Motor Corp., Mr. McCoy was injured while
attempting to render assistance to the occupants of a Suzuki Samurai that
had swerved and rolled off the highway. McCoy v. Am. Suzuki Motor Corp.,
136 Wn.2d 350, 353, 961 P.2d 952 (1998). Specifically, he was injured by a
hit-and-run driver while returning to his vehicle some two hours after the
accident. Id. Mr. McCoy filed suit against Suzuki under the Product
Liability Act. Id. at 353-54. The court determined that the injury
satisfied the test for legal cause. And a jury should determine cause in
fact. Id. at 359-61.
There, as here, Mr. McCoy had no direct contact with the Suzuki
Samurai. He was neither a driver nor a passenger. He was not struck by
the Samurai. Id. at 353-54. The court nonetheless held there were no
policy reasons demonstrating that Suzuki's 'liability should be cut off as
a matter of law.' Id. at 360. Nor do we find any policy reasons to end
the District's liability here.
The Act does not limit 'claimants' to those who have direct contact
with the product. Indeed, the Act broadly defines the class of persons who
may bring a product liability claim. RCW 7.72.010(5).
Finally, the District relies on Washington State Physicians Insurance
Exchange and Association v. Fisons Corp. for the proposition that the Act
limits the class of people who can be 'claimants.' Wash. State Physicians
Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993).
Fisons is not applicable.
There, the issue was whether a doctor who prescribed a defective drug
for a patient could recover damages from the drug's maker for his own
emotional pain and suffering--all secondary to his patient's resulting
injury. Id. at 318-19. Here, the injuries are, first of all, physical--
not emotional. And, second, the injuries proximately flow from a
foreseeable source--a child who eats E. coli-tainted meat--not someone
watching someone else suffer.
We affirm the judgment on the verdict.
Sweeney, J.
WE CONCUR:
Kato, A.C.J. Kurtz, J.
1 Escherichia coli.
2 Sorrel v. Eagle Healthcare, Inc., 110 Wn. App. 290, 299, 38 P.3d
1024 (2002) ('Where the trial court had no opportunity to address the
issue, we decline to consider it.'); Lindblad v. Boeing Co., 108 Wn. App.
198, 207, 31 P.3d 1 (2001) ('We will not review an issue, theory, argument,
or claim of error not presented at the trial court level.'); Demelash v.
Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447 (2001) ('We generally
will not review an issue, theory or argument not presented at the trial
court level.'). 'The purpose of this rule is to afford the trial court an
opportunity to correct errors, thereby avoiding unnecessary appeals and
retrials.' Demelash, 105 Wn. App. at 527.
3 RAP 2.5(a) provides, in relevant part:
The appellate court may refuse to review any claim of error which was not
raised in the trial court. However, a party may raise the following
claimed errors for the first time in the appellate court: (1) lack of
trial court jurisdiction, (2) failure to establish facts upon which relief
can be granted, and (3) manifest error affecting a constitutional right.
The appropriate standard of review for the claimed error does not affect
whether the error was in fact raised in the lower court.