08 Sep

IC man can sue olive company, court says

An Iowa City man who broke a tooth on an olive pit can sue the New York-based company that imports and packages Spanish olives, the Iowa Supreme Court ruled today.

Douglas Kolarik filed a lawsuit against Cory International Corp., Italica Imports and Tee Pee Olives Inc. in Johnson County District Court.

He alleged that he used several pimento-stuffed green olives from a jar of Italica Spanish Olives in a salad.

While eating, he bit down on an olive pit and fractured a tooth, he said. District Court Judge William L. Thomas dismissed the case, which alleged violations of strict liability, express and implied warranty and negligence for failure to warn.

The Iowa Supreme Court upheld the dismissal of the liability and warranty issues, but said Kolarik could pursue damages because a jury could find that “reasonable care by a wholesale seller of stuffed olives would include providing a warning on the label that pits or pit fragments might be encountered.

“We are satisfied that, in the case of processed foods, consumers may develop reasonable expectations that certain components of food products in their natural state that serve to impede human consumption will be removed,” the court wrote.

“Specifically, we believe that the purchaser of pimento-stuffed olives may reasonably anticipate that the olive pits have been removed.”

The court said it does not appear that the companies were negligent in processing the olives.

Testimony at the trial indicated that the U.S. Department of Agriculture standards for pitted olives allow 1.3 pits or pit parts per 100 olives.

The justices ordered the case sent back to Johnson County District Court for a trial on the failure to warn claim.

Dubuque attorney David Hammer, who represented the companies, said the court’s ruling sets a remarkable new precedent in Iowa.

He said since 1941, such product liability cases have been based on the concept that consumers should exercise a higher level of caution when consuming natural products that could contain something offensive such as a bone or a pit. “Now that responsibility has been switched from the consumer, where some of us feel is where it ultimately should rest, to a manufacturer,” Hammer said. “The result is going to be obviously more lawsuits.

” And that, Hammer said, could result in higher prices for all consumers who buy olives. “It’s naive for anybody to read that opinion other than saying the prices of olives are going to be higher and we’re all going to pay it because one guy was careless,” he said. Kolarik has an unlisted home telephone number and couldn’t be reached to comment.

His attorney did not immediately return a call seeking comment. The companies named in the lawsuit are privately held and based in Scarsdale, N.Y. Tee Pee Olives claims on its Web site to be the largest importer and packer of bulk Spanish green olives in the United States. It packs more than 1.5 million cases of green olives a year at its Norfolk, Va., plant to serve 200 retail and food service customers.

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