Are the Retailer and Manufacturer Liable for a Box of Cereal Containing Live Insects ?
In Barnes v. Kellogg Co., 846 So. 2d 568 (Fla. 2d DCA 2003), the plaintiff brought suit against Kellogg and Albertson's for strict liability, breach of an implied warranty, and negligent manufacture, alleging that she had suffered physical and psychological injuries from inadvertently eating a bowl of cereal containing live insects. Barnes, 846 So. 2d at 569.
From the inception of this litigation, both defendants were represented by the same attorney.
The attorney submitted a proposal for settlement on behalf of both defendants to Barnes pursuant to rule 1.442 and section 768.79, Florida Statutes (1999), in the amount of $ 95,000. Id. at 570.
Barnes did not accept this proposal, and the trial court ultimately dismissed her suit with prejudice, finding that her allegations were fraudulent. Id.
Following the dismissal, the defendants moved for costs and attorney's fees, and the trial court awarded them $ 45,779.
On appeal before the Second District, Barnes disputed the attorney's fees award, arguing that the proposal was defective since it did not apportion damages among the two defendants and "prevented her from accepting the offer from one defendant or the other." Id. at 569.
The Second District disagreed, finding that the rule did not prohibit a joint offer of settlement when the settlement is attributed jointly and severally to the defendants.
Regarding Albertson's liability, the Second District stated:
Ms. Barnes did not allege that Albertson's committed any act of negligence. It merely sold her a box of cereal that contained insects as a result of the manufacturing process.
The insects were a latent condition that Albertson's could not discover because the insects were inside the sealed container.
Although it played no active role in creating this condition, Albertson's, as the retailer, could be liable for such a box of cereal. See 672.314, Fla. Stat. (1999); Sencer v. Darl's Mkts., Inc., 45 So. 2d 671 (Fla. 1950); Wagner v. Mars, Inc., 166 So. 2d 673 (Fla. 2d DCA 1964). Barnes, 846 So. 2d at 569-70.