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MEYER NATURAL FOODS v. GREATER OMAHA PACKING CO.

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Meyer Natural Foods LLC and Crum & For

Specialty Insurance Company, appella

Greater Omaha Packing Co., Inc., a

___ N.W.2d ___

Filed March 15, 2019. No. S-18-108.

1. Summary Judgment. Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact or as to the ultimate inferences that 

may be drawn from those facts and that the moving party is entitled to 

judgment as a matter of law.

2. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

3. ____: ____. In reviewing a summary judgment, the court views the 

evidence in the light most favorable to the party against whom the 

judgment was granted and gives such party the benefit of all reasonable 

inferences deducible from the evidence.

4. Contracts: Judgments: Appeal and Error. The meaning of a contract 

is a question of law, in connection with which an appellate court has an 

obligation to reach its conclusions independently of the determinations 

made by the court below.

5. Contracts. A contract written in clear and unambiguous language is not 

subject to interpretation or construction and must be enforced according 

to its terms.

6. Contracts: Words and Phrases. A contract is ambiguous when a word, 

phrase, or provision in the contract has, or is susceptible of, at least two 

reasonable but conflicting interpretations or meanings.

7. Contracts. A determination as to whether an ambiguity exists in a 

contract is to be made on an objective basis, not by the subjective 

contentions of the parties; thus, the fact that the parties have suggested 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/29/2019 01:06 AM CDT
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opposite meanings of a disputed instrument does not necessarily compel 

the conclusion that the instrument is ambiguous.

8. Contracts: Appeal and Error. An appellate court will not rewrite a 

contract to provide terms contrary to those which are expressed. Nor is 

it the province of a court to rewrite a contact to reflect the court’s view 

of a fair bargain.

9. Contracts. The parties to a contract must be held to the plain language 

of the agreement they entered into.

10. Uniform Commercial Code: Contracts: Intent. The question of 

whether it is a contract for the sale of goods depends upon an examination of the entire contract. The Uniform Commercial Code applies where 

the principal purpose of the contract is the sale of goods, even though 

in order for the goods to be utilized, some installation is required. On 

the other hand, if the contract is principally for services and the goods 

are merely incidental to the contract, the provisions of the Uniform 

Commercial Code do not apply.

11. ____: ____: ____. The test for inclusion in or exclusion from the sales 

provisions of Neb. U.C.C. art. 2 (Reissue 2001) is not whether the 

contracts are mixed but, granting that they are mixed, whether their 

predominant factor, their thrust, their purpose, reasonably stated, is the 

rendition of service, with goods incidentally involved, or whether they 

are transactions of sale, with labor incidentally involved.

12. Damages. Damages are not recoverable for loss that the injured party 

could have avoided without undue risk, burden, or humiliation.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Affirm

Thomas A. Grennan and Adam J. Wachal, of Gross & 

Welch, P.C., L.L.O., for appellants.

Michael F. Coyle and Jordan W. Adam, of Fraser Stryker, 

P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, and Freudenberg, 

Heavican, C

INTRODUCTION

Meyer Natural Foods LLC (Meyer), together with Crum & 

Forster Specialty Insurance Company, sued Greater Omaha 

Packing Company, Inc. (GOP), for breach of contract following 
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a purported E. coli “O157:H7” contamination of beef owned 

by Meyer and processed by GOP. The district court for 

Douglas County granted summary judgment in favor of GOP. 

Although our reasoning differs from that of the district court, 

we affirm.

BACKGROUND

On April 27, 2006, Meyer and GOP entered into a processing agreement, which was amended on May 17, whereby GOP 

would slaughter Meyer’s cattle, process the beef, and fabricate the same into various beef products. GOP engaged in the 

processing of Meyer beef 1 day per week for 5 years, until 

May 2011.

Processing of beef by GOP generally entails that after cattle 

are “harvested,” the carcasses are chilled for 24 hours. Once 

chilled, the beef is “fabricated,” a practice in which workers 

process the chilled carcasses into larger cuts of beef known as 

intact cuts (e.g., tenderloins, rib eyes, briskets) and into smaller 

pieces of beef known as nonintact cuts or trim (used to make 

products such as ground beef). Intact cuts are shrink wrapped 

and shipped in boxes, referred to as “boxed beef.” The nonintact beef, or trim, is placed into large cardboard “combo 

bins” containing approximately 2,000 pounds of a combination 

of raw beef trim. The trim is then shipped to processing facilities across the United States for the purpose of making ground 

beef. When making ground beef, trim is mixed and ground 

with other nonintact beef products. This requires that the large 

cardboard combo bins of beef trim be tested for the presence of 

E. coli prior to the production of ground beef.

On April 25, 2011, Meyer delivered 1,600 head of cattle to 

GOP for slaughter, processing, and fabrication pursuant to the 

agreement. On April 27, GOP slaughtered the cattle delivered 

by Meyer. Also pursuant to the agreement, in the days following the slaughter and rendering, GOP tested the beef for the 

presence of various strains of E. coli.

The Meyer beef that had been fabricated by GOP on April 

27, 2011, was then sealed and delivered to Meyer’s offices 
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in Omaha, Nebraska, under a “hold,” per GOP’s standard 

procedure known as the Hazard Analysis and Critical Control 

Point plan, which is approved by the U.S. Department of 

Agriculture.

Under the plan, the combo bins are tested and then sealed. 

Once sealed, the combo bins may be placed on refrigerated 

trailers and shipped, but cannot be opened until the results of 

the E. coli testing are returned. Any combo bins containing 

trim testing presumptively positive for the presence of impermissible pathogens are diverted to “cookers” for a lethality 

treatment, which is industry standard.

In this case, an independent laboratory found that of the 211 

samples tested, 37 resulted in a presumptive positive finding of 

the presence of E. coli O157:H7. The 37 presumptive positive 

samples constituted a 171⁄2-percent finding of E. coli contamination. This percentage was over three times the number of 

presumptive positives necessary to trigger an “event day,” in 

which there is a very high percentage of presumptive positive 

findings for E. coli.

On April 28, 2011, GOP met with Meyer and informed them 

of the presumptive positive test results for the presence of E. 

coli. Meyer immediately recalled the trucks. The beef that had 

tested presumptively positive for E. coli O157:H7 was either 

sent to a cooker so that the product could ultimately be sold 

at a reduced charge or transported to a landfill because it was 

altogether unsafe for human consumption.

Meyer filed suit against GOP. As set forth in its second 

amended complaint, Meyer alleged breach of contract, breach 

of warranty, breach of an indemnity obligation, failure to 

obtain insurance, and breach of the guarantee. Meyer filed an 

amended motion for partial summary judgment, requesting the 

court to find that GOP failed to obtain and maintain “‘property insurance’” on the value of Meyer’s property. Prior to the 

district court’s ruling on Meyer’s motion, GOP filed its own 

motion for summary judgment.

The district court concluded the evidence was clear that 

GOP had a property insurance policy with Liberty Mutual Fire 
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Insurance Company, which policy remained in full force and 

effect for the duration of the agreement. The court found that 

the policy provided insurance coverage for any nonowned personal property in GOP’s care, custody, and control that GOP 

“‘agreed, prior to loss, to insure.’” The court further found that 

the policy’s liability limit was $98,836,333 per occurrence, 

complying with the terms of the addendum to section 18. The 

court noted that the addendum to section 18, which replaced 

the original language in section 18 of the processing agreement, required only that GOP “maintain property insurance on 

Meyer Natural Angus property in its possession, with a total 

value of $1,800,000,” with which GOP complied. The court 

interpreted the agreement and addendum as not requiring GOP 

to carry property insurance coverage for an E. coli O157:H7 

contamination. Therefore, the court held that Meyer’s contention that GOP failed to obtain insurance as required by the 

contract failed as a matter of law.

The court then found that Meyer’s claims against GOP 

with regard to breach of contract, breach of warranty, breach 

of indemnity obligation, and breach of guarantee failed as a 

matter of law due to Meyer’s failure to return the rejected 

processed meat to GOP, which the court found was the remedy provided under the agreement for products failing to 

meet a specification or warranty provided by GOP. The court 

subsequently granted GOP’s renewed amended motion for 

summary judgment and denied Meyer’s amended motion for 

summary judgment.

ASSIGNMENTS OF ERROR

Meyer alleges 11 assignments of error, which can be condensed and restated as 4: The trial court erred in (1) finding 

that GOP carried property insurance in accordance with the 

agreement and overruling Meyer’s motion for partial summary 

judgment; (2) finding that the agreement did not require GOP 

to carry property insurance for E. coli contamination and, as 

such, granting GOP’s motion for summary judgment; (3) incorrectly interpreting section 10 of the agreement to conclude that 
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Meyer had accepted the E. coli contaminated beef under the 

agreement or under the Uniform Commercial Code; and (4) 

finding that GOP was not negligent and therefore not liable for 

indemnity under the agreement.

STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving 

party is entitled to judgment as a matter of law.1 An appellate 

court will affirm a lower court’s grant of summary judgment 

if the pleadings and admitted evidence show that there is no 

genuine issue as to any material facts or as to the ultimate 

inferences that may be drawn from those facts and that the 

moving party is entitled to judgment as a matter of law.2

[3] In reviewing a summary judgment, the court views the 

evidence in the light most favorable to the party against whom 

the judgment was granted and gives such party the benefit of 

all reasonable inferences deducible from the evidence.3

[4] The meaning of a contract is a question of law, in connection with which an appellate court has an obligation to 

reach its conclusions independently of the determinations made 

by the court below.4

ANALYSIS

GOP’s Property Insurance 

Pursuant to Agreement.

Meyer assigns that the trial court erred in finding that GOP 

carried property insurance in accordance with the agreement 

and, accordingly, overruling Meyer’s motion for partial summary judgment. The crux of Meyer’s argument is that the 

1 Continental Cas. Co. v. Calinger, 265 Neb. 557, 657 N.W.2d 925 (2003).

2 Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (2016).

3 Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d 571 (2015).

4 McKinnis Roofing v. Hicks, 282 Neb. 34, 803 N.W.2d 414 (2011).
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insurance policy’s exclusion of coverage for damage resulting 

from E. coli constituted a breach of section 18 of the agreement, which required GOP to “maintain property insurance on 

Meyer Natural Angus Property in its possession, with a total 

value of $1,800,000.” Incorporated into Meyer’s claim that 

GOP failed to carry insurance in accordance with the terms 

of the agreement is Meyer’s claim that the agreement did 

not permit the exclusion of E. coli insurance in GOP’s insurance policy.

[5-9] A contract written in clear and unambiguous language 

is not subject to interpretation or construction and must be 

enforced according to its terms.5 A contract is ambiguous when 

a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations 

or meanings.6 A determination as to whether an ambiguity 

exists in a contract is to be made on an objective basis, not 

by the subjective contentions of the parties; thus, the fact that 

the parties have suggested opposite meanings of a disputed 

instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.7 Further, we will not rewrite the contract to provide terms contrary to those which are expressed. 

Nor is it the province of a court to rewrite a contact to reflect 

the court’s view of a fair bargain.8 The parties to a contract 

must be held to the plain language of the agreement they 

entered into.9

Turning to the record, we note that GOP and Meyer first 

entered into an agreement that contained a provision requiring 

GOP to maintain comprehensive property insurance. We need 

5 Gary’s Implement v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d 

355 (2005).

6 Kluver v. Deaver, 271 Neb. 595, 714 N.W.2d 1 (2006).

7 Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d 786 (2000).

8 See Wurst v. Blue River Bank, 235 Neb. 197, 454 N.W.2d 665 (1990).

9 See Berens & Tate v. Iron Mt. Info. Mgmt., 275 Neb. 425, 747 N.W.2d 383 

(2008).
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not pass on the extent to which the original insurance provision would have covered an E. coli contamination, because 

the original language of the provision entered into on April 

27, 2006, was replaced by the addendum entitled “Letter of 

Understanding - Revisions,” which was executed on or about 

May 17. Despite the typographical error with regard to the date 

the original agreement was signed, it is clear that the addendum 

was to replace the language of the original section 18 contained 

in the agreement. This conclusion is evidenced by the language 

of the addendum, just below “Section 18 — INSURANCE,” 

which states “[t]he following verbiage will replace the signed 

Processing Agreement language . . . .”

Under section 18 of the agreement, as amended by the 

addendum dated May 17, 2006, Meyer and GOP agreed that 

“[t]he following verbiage will replace the signed Processing 

Agreement language: [GOP] shall, during term of agreement, maintain property insurance on Meyer Natural Angus 

property in its possession, with a total value of $1,800,000. 

Additionally, [GOP] agrees to provide coverage as evidenced 

in the Certificate of Insurance.”

According to the language of the addendum, GOP was 

required to maintain property insurance only on Meyer’s property in GOP’s possession. The language of the addendum is 

void of any requirements regarding the inclusion of E. coli

coverage or the prohibition of exclusions contained within the 

insurance policy. Section 18, as contemplated in the addendum, 

further specifies that the coverage to be provided would be 

“evidenced in the Certificate of Insurance.” The certificate of 

insurance is void of any language guaranteeing coverage for 

loss caused by E. coli contamination. Additionally, nothing in 

the addendum required GOP to carry property insurance for 

coverage for an E. coli O157:H7 contamination. As we have 

previously stated, it is not the province of the court to rewrite a 

contract to reflect the court’s view of a fair bargain.10

10 Wurst v. Blue River Bank, supra note 8.
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As the district court correctly noted, the evidence is clear 

that GOP had a property insurance policy with Liberty Mutual 

Fire Insurance Company, which remained in full force and 

effect for the duration of the agreement. The policy provided 

insurance coverage for any nonowned personal property in 

GOP’s care, custody, and control that GOP “‘agreed, prior to 

loss, to insure.’” The language of the addendum is clear and 

unambiguous, requiring only that GOP “maintain property 

insurance on Meyer Natural Angus property in its possession, 

with a total value of $1,800,000.” The record is clear that GOP 

maintained property insurance in accordance with the addendum to the agreement.

Meyer’s assignment of error with regard to whether GOP 

carried property insurance in accordance with the agreement, 

and accordingly, Meyer’s argument that the court erred in 

denying its motion for partial summary judgment, is without merit.

Meyer’s assignment of error in regard to the insurance 

policy, as well as the agreement requiring coverage for E. coli

contamination, is without merit.

Section 10 of Agreement as It Pertains to Meyer’s 

Alleged Acceptance and Implications of 

Uniform Commercial Code.

Next, Meyer assigns that the court erred in granting GOP’s 

motion for summary judgment, finding that Meyer had accepted 

the E. coli contaminated beef according to section 10 of the 

agreement, and that GOP was not liable to Meyer under the 

agreement.

Meyer argues that it did not accept the meat under the terms 

of the agreement or the Uniform Commercial Code, because 

it notified GOP of its nonconforming product within days of 

delivery. Meyer argues alternatively that if it is found to have 

accepted the meat, GOP is nevertheless responsible for any 

breach of express warranties. Specifically, Meyer contends that 

GOP breached the guarantee and agreement when it delivered 

possession of E. coli contaminated beef to Meyer, because the 
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beef was adulterated under federal and state law. Meyer argues 

that GOP expressly warranted that the meat it processed would 

not be adulterated under any applicable law.

We turn first to the contractual argument concerning the 

alleged acceptance. Meyer argues that it did not accept the beef 

processed by GOP, because the meat was adulterated and thus 

a nonconforming good, to which they alerted GOP within days 

of the delivery.

The district court found that pursuant to Neb. U.C.C. 

§ 2-707(2) (Reissue 2001), Meyer had knowingly accepted 

the contaminated meat and “had it sent to either a cooker so 

that the product could ultimately be sold at a reduced charge 

or was transported to a landfill, since it was altogether unsafe 

for human consumption.” The court further found that Meyer 

failed to avail itself of its rights under the agreement and that 

its claims failed as a matter of law.

[10] The district court improperly applied article 2 of the 

Uniform Commercial Code when it relied on Neb. U.C.C. 

§ 2-607(2) (Reissue 2001). In Mennonite Deaconess Home & 

Hosp. v. Gates Eng’g Co.,

11 this court discussed the applicability of the Uniform Commercial Code when a contract calls for 

both the sale of goods and the rendition of services, noting:

The question of whether this is a contract for the sale of 

goods depends upon an examination of the entire contract. The cases are uniform in holding that the [Uniform 

Commercial Code] applies where the principal purpose 

of the contract is the sale of goods, even though in order 

for the goods to be utilized, some installation is required. 

On the other hand, if the contract is principally for services and the goods are merely incidental to the contract, 

the provisions of the [Uniform Commercial Code] do 

not apply.

[11] The test for inclusion in or exclusion from the sales 

provisions of Neb. U.C.C. art. 2 (Reissue 2001) is not whether 

11 Mennonite Deaconess Home & Hosp. v. Gates Eng’g Co., 219 Neb. 303, 

307-08, 363 N.W.2d 155, 160 (1985).
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the contracts are mixed but, granting that they are mixed, 

whether their predominant factor, their thrust, their purpose, 

reasonably stated, is the rendition of service, with goods incidentally involved, or whether they are transactions of sale, with 

labor incidentally involved.12

Here, the contract spanned several years with the predominant factor’s being GOP’s fabrication of beef supplied by 

Meyer. It is significant that ownership of the cattle never left 

Meyer’s control and that it does not appear from the record 

that GOP engaged in any exchange of beef products between 

Meyer and other GOP clients. Thus, the contract involved 

in this case was for that of services and only incidentally 

involved goods.

Still, we find no error in the district court’s ultimate conclusion. Under section 10 of the agreement, Meyer had the option 

to reject “[a]ll products failing to meet the warranties and 

specifications contained in this Agreement . . . .” Section 10 

provides that rejected products be “returned or held at GOP’s 

expense and risk.” That section further indicates that “Meyer 

shall charge GOP its out-of-pocket expenses of storing and 

reshipping any products properly rejected by Meyer under this 

Agreement.” (Emphasis supplied.)

As the district court noted, some of the contaminated products were sent to cookers where the products were to be 

treated in accordance with industry standards to eradicate E. 

coli contamination. While the parties contended at oral argument that some of the contaminated products were returned 

to GOP, the record does not demonstrate that any of the contaminated products were returned. Specifically, under the heading “5-03-11-Tuesday,” exhibit 101 states, “[GOP] discussed 

re-working the product on Saturday. . . . The Meyer Natural 

Angus decision was to send the entire product produced within 

the event time period to a cooker.” The record demonstrates 

that the products were diverted to cookers, landfills, or simply 

12 Id.
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left unreturned. Under the terms of the agreement, Meyer had 

the responsibility of returning to GOP any rejected product. In 

this case, Meyer acted unilaterally in disposing of the contaminated beef and therefore failed to adhere to the terms specified 

to properly reject products under the agreement.

[12] According to the Restatement (Second) of Contracts, 

“damages are not recoverable for loss that the injured 

party could have avoided without undue risk, burden or 

humiliation.”13 Here, Meyer could have avoided the loss 

caused by GOP’s breach had Meyer simply returned or held 

the rejected product at GOP’s expense according to section 10 

of the agreement. The record demonstrates that GOP sought 

to “rework” the product in order to cure the breach, which 

Meyer rejected. Meyer failed to avoid the damages, and is not 

entitled to recover for damages that could have been avoided. 

Therefore, although the district court’s reasoning was flawed 

in its application of the Uniform Commercial Code, it was 

correct in its ultimate conclusion with regard to the products 

left unreturned.

Express Warranty.

We turn now to Meyer’s contention that GOP breached 

its express warranty that the meat it processed would “not 

be adulterated or misbranded within the meaning of any

applicable federal, state, or local law, or any rules and regulations promulgated thereunder[.]” (Emphasis supplied.) As 

the meaning of the word “adulterated” is not ambiguous 

under the terms of section 15(a)(iv)(A), the issue turns on 

statutory interpretation. Meyer argues that under the Federal 

Meat Inspection Act (FMIA),14 and Nebraska law, the meat 

delivered by GOP was adulterated, in breach of GOP’s 

express warranty.15

13 Restatement (Second) of Contracts § 350(1) at 126 (1981).

14 See 21 U.S.C. § 601 et seq. (2012 & Supp. V 2017).

15 See Neb. Rev. Stat. § 81-2,282(2) (Reissue 2014). See, also, Neb. Rev. 

Stat. § 54-1902 (Reissue 2010).
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Under the FMIA,

[t]he term “adulterated” shall apply to any carcass, part 

thereof, meat or meat food product under one or more of 

the following circumstances:

(1) if it bears or contains any poisonous or deleterious 

substance which may render it injurious to health; but in 

case the substance is not an added substance, such article 

shall not be considered adulterated under this clause if the 

quantity of such substance in or on such article does not 

ordinarily render it injurious to health;

(2)(A) if it bears or contains (by reason of administration of any substance to the live animal or otherwise) any 

added poisonous or added deleterious substance (other 

than one which is (i) a pesticide chemical in or on a 

raw agricultural commodity; (ii) a food additive; or (iii) 

a color additive) which may, in the judgment of the 

Secretary, make such article unfit for human food;

. . . .

(3) if it consists in whole or in part of any filthy, putrid, 

or decomposed substance or is for any other reason 

unsound, unhealthful, unwholesome, or otherwise unfit 

for human food[.]16

In Texas Food Industry Ass’n v. Espy,

17 the U.S. District 

Court for the Western District of Texas, when commenting 

on the U.S. Department of Agriculture’s program of sampling 

retail establishments for the presence of E. coli, stated that 

“[a]ny of these samples testing positive for the pathogen E. 

Coli would be treated as ‘adulterated’ under the [FMIA].” GOP 

argues that Espy is distinguishable, because in that case the 

samples tested positive, not merely presumptive positive as is 

the case here.

GOP further seeks to have this court hold that in order for 

the meat to be considered “adulterated” under the law, it must 

16 21 U.S.C. § 601(m).

17 Texas Food Industry Ass’n v. Espy, 870 F. Supp. 143, 145 (W.D. Tex. 

1994).
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enter into the stream of commerce. GOP argues that the central purpose of the FMIA is to prevent the adulteration of food 

and to prevent adulterated food from being introduced into, or 

received in, interstate commerce. Thus, GOP contends that in 

this case, the contaminated beef does not meet the definition of 

adulterated, because it was withheld from public distribution 

under GOP’s standard procedure plan.

GOP’s argument misconstrues the purpose of the inclusion 

of the term “commerce” in the law. As contemplated in the 

federal law, “commerce” refers to the constitutional grant of 

authority to Congress to enact laws under article I, § 8, of 

the Constitution of the United States. That is to say, that in 

promulgating the regulatory scheme, the FMIA was describing that

[t]he commerce power is “the power to regulate; that is, to 

prescribe the rule by which commerce is to be governed. 

This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and 

acknowledges no limitations, other than are prescribed in 

the constitution.”18

As the U.S. Supreme Court has noted, the power of Congress to 

regulate commerce extends even to that which is not intended 

to enter the stream of commerce but may have a substantial 

economic effect on interstate commerce.19

Therefore, the contaminated meat did not need to enter the 

stream of commerce to be considered adulterated under the 

FMIA. However, even if that were the case under the FMIA, 

§ 81-2,282 provides:

(2) Food shall be deemed to be adulterated if:

(a) It bears or contains any substance which may render it injurious to health, considering the quantity of such 

substance in or on the food;

18 United States v. Lopez, 514 U.S. 549, 553, 115 S. Ct. 1624, 131 L. Ed. 2d 

626 (1995).

19 See Wikard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942).
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(b) It consists in whole or in part of any diseased, contaminated, filthy, putrid, or decomposed substance or is 

otherwise unsafe for use as food.

A plain reading of § 81-2,282 demonstrates that when food—in 

this case meat—bears or contains any substance which may 

render it injurious to health, then the food should be considered 

adulterated. As the U.S. Court of Appeals for the Eighth Circuit 

noted in Am. Home Assur. v. Greater Omaha Packing,

20

E. coli O157:H7 bacteria live in the digestive tracts 

of cows and can be transferred to meat during slaughter. 

Humans become infected by consuming contaminated 

beef, and the O157:H7 strain is so virulent that even a 

small dose can make a person ill. Unlike the harmless E. 

coli bacteria commonly found in human intestines, E. coli

O157:H7 produces Shiga toxins, which cause inflammation of the colon and large intestine, resulting in stomach 

cramps and bloody diarrhea. Hemolytic uremic syndrome 

is a severe complication of E. coli O157:H7 infection that 

can cause anemia and kidney damage.

Further, the record demonstrates that the product was processed 

by GOP and delivered to Meyer before the E. coli O157:H7 

had been eradicated. Therefore, under Nebraska law, every 

processed product produced by GOP containing E. coli appears 

to have been adulterated in breach of its express warranties.

The district court determined that as a result of Meyer’s 

accepting and retaining the adulterated meat, Meyer had failed 

to avail itself of its contracted-for remedy. The court relied on 

section 19 of the agreement to apply the Uniform Commercial 

Code. Section 19 states in relevant part that the “nonbreaching party shall be entitled to pursue, in addition to any 

remedies specifically provided herein, all further remedies 

then available under the applicable state Uniform Commercial 

Code or otherwise available at law or in equity.” The court 

20 Am. Home Assur. v. Greater Omaha Packing, 819 F.3d 417, 420 (8th Cir. 

2016).
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Cite as 302 Neb. 509

proceeded to apply § 2-607(2), stating that “‘[a]cceptance of 

goods by the buyer precludes rejection of the goods accepted 

and if made with knowledge of a nonconformity cannot be 

revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably 

cured . . . .’”

However, as noted above, the court’s application of article 2 

of the Uniform Commercial Code was improper. Specifically, 

section 19 of the agreement states that the nonbreaching party 

shall be entitled to “all further remedies then available under 

the applicable state Uniform Commercial Code.” (Emphasis 

supplied.) As previously discussed, article 2 is not applicable 

to a contract for services that only incidentally involve goods.

Having found that GOP breached the express warranty 

contained in section 15(a)(iv)(A) of the contract, we return 

to the fact that Meyer prevented GOP from mitigating the 

amount of damages by refusing to allow GOP to “rework” 

the E. coli contaminated meat. Additionally, according to the 

terms of the contract, Meyer could have, but failed to, return 

more of the adulterated meat for full credit. As a result of 

Meyer’s failure to mitigate the damages, Meyer is not entitled 

to recover.

GOP’s Alleged Negligence 

and Resulting Indemnity.

Lastly, Meyer assigns that the court erred in finding that 

GOP was not negligent and therefore not liable for indemnity 

under the agreement.

As stated above, we will affirm a lower court’s grant of 

summary judgment where the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. The Restatement (Third) of Torts states:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary 

factors to consider in ascertaining whether the person’s 
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MEYER NATURAL FOODS v. GREATER OMAHA PACKING CO.

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conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the 

foreseeable severity of any harm that may ensue, and 

the burden of precautions to eliminate or reduce the risk 

of harm.21

In support of its argument, Meyer alleges that reports of GOP 

workers violating GOP’s own sanitation procedures on days 

surrounding the fabrication of Meyer’s cattle, and the failure of 

supervisors to investigate those reports, raised a genuine issue 

of material fact precluding summary judgment.

Meyer argues that it raised valid sanitary issues, specifically 

in regard to three instances of sterilization violations on the 

part of GOP employees, within 5 days of the “event day” date, 

which provided sufficient evidence to suggest that negligence 

occurred on the “event day.” However, Meyer did not present 

any evidence of negligence on the “event day.”

The district court noted, and the parties agreed at oral arguments, that E. coli has historically occurred in the production 

of raw beef products. The district court concluded that Meyer 

had failed to present any evidence to the court to suggest any 

negligence occurred on the days in which Meyer’s cattle were 

fabricated. Based on the evidence presented and our standard 

of review, we agree with the district court.

CONCLUSION

Although the district court incorrectly applied the Uniform 

Commercial Code in regard to Meyer’s acceptance of adulterated meat under the agreement, the court nevertheless arrived 

at the correct result. Therefore, the decision of the district court 

is affirmed.

Affirm

21 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm 

§ 3 at 29 (2010).