“The Pending Farmers’ Market Fiasco: Small-Time Farmers, Part-Time Shoppers, and a Big-Time Problem”

Written by staff member Brandon Baird, this Note appeared in KJEANRL Vol. 1 No. 1. This abstract is written by staff member Brandon Wells.

The recent growth in farmer’s markets has created increased complexities in dealing with liability for injuries from food sold at these markets. The main focus of this note is on the implications of applying the modern “consumer expectations” test of food liability to the markets, as well as what duties the vendors at these markets may owe to the consumers that visit them.

The analysis begins with a brief discussion of the history of farmer’s markets, noting that farmer’s markets have been around essentially as long as people have been trading for produce. A brief timeline is provided, outlining the shift from early products liability law that applied a strict liability theory to the sellers of food to the modern “consumer expectations” test. The “consumer expectations” test actually provides food purchasers less protection than strict liability, mainly because the “consumer expectations” test allows a jury to decide whether the reasonable consumer should have expected to find the defective aspect of the food.

The legal liability of the farmer’s markets is of significant importance, and there is much concern over whether the mostly uninsured farmer’s markets can continue to thrive while facing inevitable products liability claims for defective food. There is also an interest in the protection of farmer’s market consumers, and how the law can come to their aid. Courts have found manufacturers and restaurants liable for failing to warn of possible contamination in food, and the duty to warn should be applied to farmers in markets as well.

While some markets do require their vendors to carry liability insurance, unfortunately most do not. This opens up vendors to a potentially unlimited amount of liability. Most farmers’ market vendors don’t have many assets, and while this may prevent them from acquiring insurance; it may also prevent them from ever having to defend against a claim. Pursuing a claim against a vendor with little assets to satisfy a judgment may not be practical for injured consumers.

Although growing more prominent with local purchasers trying to save money in a tough economy and those that just want to enjoy local fresh produce; farmer’s markets are not completely safe for consumers. Contamination of food is at great risk with farmer’s markets, especially since farmers are mostly unregulated and are allowed to process foods such as jam, jelly and cake in their own kitchens. A failure to warn combined with uninsured vendors makes claims against farmers more complex and less remedial than those against large food retailers. While farmer’s markets have the ability to be a great part of our future society, the legal liabilities involved are certainly a risk factor we can’t ignore.