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  1. #21
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    Jan 2006
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    Quote Quoting badzombie
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    And in the case of strict liability, you may be able to sue the seller as well as the manufacturer.
    so you are saying the OP might be able to sue God? or would it be the flagellates that are the actual source of the toxins? or the parents of the fish that was eaten since they were the "manufactures" of the fish that was eaten.


    so, just who are you considering the manufacturer to be here?

  2. #22
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    Quote Quoting badzombie
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    You may well be right, but it would be more helpful if you could identify what I'm misunderstanding rather than just insisting it to be true.

    Here are some links that might be educational on the subject:

    http://www.marlerblog.com/lawyer-ope.../#.VWs1eUaJXCs
    http://www.alllaw.com/articles/nolo/...poisoning.html
    http://www.foodsafetynews.com/2009/0.../#.VWs2C0aJXCs
    http://www.foodpoisonjournal.com/foo.../#.VWs2I0aJXCs

    There are many others, but as you can see, establishing fault with regard to strict liability in food poisoning cases is not required.
    If those links represent the extent of your research into the issues we're discussing, it's no surprise that your understanding is superficial.

    What you can do is identify some states that you believe hold your position on product liability -- that a restaurant is strictly liable for any illness or injury that results from any form of food contamination, whatever other facts may be involved -- and we can take a look at the laws of that state. As you are asserting that this is the law of the land, you should not have difficulty identifying a few states whose laws are consistent with your claims.

  3. #23
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    Nov 2013
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    As I have already indicated the question which is raised is whether on the facts of this case the defense of assumption of risk was available to the defendant. It is clear that since the liability is not based upon the negligence of the restaurant owner, but is rather a strict liability based upon the warranty of fitness which the law implies, contributory negligence is not available as a defense when such negligence consists merely in the failure to discover the defect in the product. On the other hand, the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and which is commonly called assumption of risk, may be a defense in a case of strict liability such as this. If the consumer is fully aware of the danger and nevertheless proceeds voluntarily to make use of the product and is injured by it he is barred from recovery
    Here are two cases on the issue of fish poisoning and strict liability from de islands.

    District Court, Virgin Islands D. St. Croix, at Christiansted

    http://scholar.google.com/scholar_ca...8172447596525&

  4. #24
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    Quote Quoting jk
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    so you are saying the OP might be able to sue God? or would it be the flagellates that are the actual source of the toxins? or the parents of the fish that was eaten since they were the "manufactures" of the fish that was eaten.
    The issue here is that food is relatively unique, in that there are risks to consumption of pretty much any food product. Food is not like a ladder -- if you take a medication that makes you dizzy you shouldn't climb a ladder, but there aren't medications that make ladders potentially toxic if you take them in combination with your use of a ladder. You're not going to have a potentially lethal allergic reaction to using a ladder. You're not going to consume a bacterium or other contaminant that is always present to some degree in a ladder, merely because you climb it. There's a significant difference between the type of product liability that resulted, for example, from the 1993 Jack in the Box case, where contaminated meat was distributed to restaurants and was not rendered safe at the restaurant due to poor handling and insufficient cooking, and the (ideally) trace levels of salmonella that are almost certainly present in the chicken and eggs that are sitting on the shelf of your local grocery store.
    Quote Quoting budwad
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    Here are two cases on the issue of fish poisoning and strict liability from de islands.
    Alrighty... Your first case is a trial court decision from a case the plaintiff lost, just shy of half a century ago:
    Quote Quoting Bronson
    The evidence of Mrs. Bronson herself was that she knew that occasional cases of ciguatera fish poisoning occurred in the Virgin Islands. I accordingly charged the jury that if they found that Mrs. Bronson assumed the risk of eating a piece of fish which had ciguatera poison in it, knowing that this was a possibility when she ordered the fish and ate it, their verdict should be for the defendant. I am satisfied that I did not err in doing so.
    The case was resolved by the jury in favor of the defense based on principles of assumption of risk, and the trial court's decision focuses on its jury instruction on that issue and thus does not discuss the other legal issues as thoroughly as the second case. The second case is a @40-year-old pretrial decision, denying the plaintiff's motion for partial summary disposition. The trial court found that the defendant could present the defenses of proximate causation, whether due to the nature of ciguatera poisoning the "reasonable expectations test" would prevent liability (with it being a question of fact whether a buyer could reasonably expect to find the substance in the food consumed), and assumption of risk.

    Leaving aside the wave of product liability 'reforms' that swept the nation in the 1990s, neither of those cases provides good support for your theory of how strict liability applies to foodborne illness.

  5. #25
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    I posted those case to support just the opposite. That strict liability did not apply. I was taking your possession. I should have made that clearer.

  6. #26
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    St. Croix is a US territory.

  7. #27
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    Quote Quoting budwad
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    I posted those case to support just the opposite. That strict liability did not apply. I was taking your possession. I should have made that clearer.
    Sorry.... That was my brain getting cross-wired. I was continuing from the prior discussion and didn't even notice that you were the one posting.
    Quote Quoting flyingron
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    St. Croix is a US territory.
    Right. Those decisions, which rely on the then-existing version of the UCC as adopted by the U.S. Virgin Islands, don't shed light on the laws of the Turks & Caicos Islands.

  8. #28
    Join Date
    May 2015
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    5

    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    I am going to attempt to go through the resort's insurance simply to recoup the costs I've incurred.

  9. #29

    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    Quote Quoting Mr. Knowitall
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    If those links represent the extent of your research into the issues we're discussing, it's no surprise that your understanding is superficial.

    What you can do is identify some states that you believe hold your position on product liability -- that a restaurant is strictly liable for any illness or injury that results from any form of food contamination, whatever other facts may be involved -- and we can take a look at the laws of that state. As you are asserting that this is the law of the land, you should not have difficulty identifying a few states whose laws are consistent with your claims.
    See Mexicali Rose v. Superior Court, 822 P.2d 1292 (Reasonable expectation test for determining whether injurious substance ought to be anticipated in particular dish focuses not on components of dish but on final item sold to consumer, expectations that are engendered by type of dish, and preparation used in making dish.)

    See Estate of Pinkham V. Cargill, 55 A.3d 1 (The “reasonable expectation” test is used in strict liability cases alleging a defective food product.)

    Both cases, from states on both coasts, explain that consumer "reasonable expectation" is the standard that applies in strict liability cases involving food.

    And I did not assert that the restaurant, necessarily, was liable. It could be their supplier. As a general tort matter, such as in the case of a piece of defective construction equipment, the seller as well as the manufacturer can be held strictly liable for a defect.

    Thirty year old cases are useless on the matter of strict product liability and food since this is a recently developing area of tort law. A case from 1979 is meaningless. Take a look at the Restatement 3d of Torts 1.7 if you really want to know the current state of the law in most states in this regard.

    As for jk, who ridiculed the notion that the term "manufacturer" could apply to fish, you should know that the processors of food products that are harvested from the wild are still properly referred to as "manufactures". Thus, companies like Gorton's and Mrs. Paul's are manufacturers of food products even though they get the little fishies from the ocean.

  10. #30
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    Apr 2009
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    Default Re: Tourist Contracted Ciguatera at a 5 Star Resort in Turks and Caicos

    I have a genuine question for you, zombie.

    Is there not a difference between selling the unprocessed product versus converting it from the original and re-forming it via the addition of fillers, preservatives, flavorings and breadcrumbs?

    Are you saying that the vendors at Pike Place market are actually manufacturers?

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