UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL ALEXANDER and EDNA

ALEXANDER,

Plaintiffs,

v.

DEL MONTE CORPORATION and THE

KROGER COMPANY,

Defendants.

 /

Case No. 09-12303

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on January 11, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Darryl Alexander and his wife, Edna Alexander, filed this action against Del Monte

Corporation (“Del Monte”) and The Kroger Company (“Kroger”) to recover damages for

injuries Mr. Alexander sustained while opening a jar of fruit. Presently before the Court is

Defendants’ Motion in Limine to preclude any reference at trial to the Michigan Food Law

of 2000 (the “Food Law”), Michigan Compiled Laws § 289.1101 et seq. The matter has

been fully briefed by the parties, and the Court dispenses with oral argument pursuant to

Eastern District of Michigan Local Rule 7.1f(2). For the reasons stated below, the Court

denies Defendants’ Motion.

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Defendants argue that the Food Law has no bearing on this case, as the Court granted

Defendants summary judgment on Plaintiffs’ Food Law claim. Plaintiffs contend that the

statute establishes the applicable standard of care for their negligence claim. Michigan

law permits the use of a statute in establishing the standard of care in a negligence action:

“The fact that a person has violated a safety statute may be admitted as evidence bearing

on the question of negligence.” Klansec v. Anderson Sales & Serv., Inc., 426 Mich. 78,

86, 393 N.W.2d 356, 359 (Mich. 1986). The use of a statutory violation to establish

negligence is a matter of judicial discretion. Id. at 87, 393 N.W.2d at 360. A statutory

violation is relevant to a negligence action where: (1) the statute is intended to protect

against the result of the violation; (2) the plaintiff is within the class intended to be

protected by the statute; and (3) the evidence will support a finding that the violation was a

proximate contributing cause of the occurrence. Id., 393 N.W.2d at 360.

The Court concludes that the Food Law is intended to protect against the result of the

violation alleged by Plaintiffs. Among the legislature’s purposes for enacting the Food

Law was “to regulate the labeling, manufacture, distribution, and sale of food for

protection of the consuming public.” Michigan Compiled Laws prec. § 289.1101. 

Plaintiffs allege that the jar of fruit was sold after its shelf life, resulting in the buildup of

gas inside the jar, and the “explosion” of the jar when Mr. Alexander attempted to open it. 

Mr. Alexander is certainly part of the consuming public, and the danger was allegedly

caused by the improper labeling, manufacture, and distribution of food. Defendants

suggest that the Food Law’s focus is intentional mislabeling, but the Court has found

nothing in the statute limiting its reach to intentional violations. The Court also concludes

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that Plaintiffs are within the class of persons intended to be protected by the Food Law, as

they are members of the consuming public who purchased a food product.

Finally, the Court concludes that the evidence supports a finding that the alleged

violation was a proximate contributing cause of Mr. Alexander’s injuries. While improper

labeling could not have caused the contents of the jar to become dangerous, the evidence

shows that it contributed to the jar being in Mr. Alexander’s possession. Defendants have

not disputed that the latest possible expiration date for the jar of fruit at issue was March

31, 2008. Kroger has presented the testimony of Beatrice Imm, its produce manager,

stating that expired product is removed from store shelves daily. Imm Dep. 16:11, Feb.

18, 2010. Thus, if the jar had been labeled with the proper expiration date, it would have

been removed from the shelves before Mrs. Alexander purchased it on April 8, 2008. 

Plaintiff’s counsel has also indicated that Mrs. Alexander will testify that she would not

have purchased fruit past its expiration date, even if it had been on Kroger’s shelves. Hr’g

Tr. 21, Oct. 14, 2010. Although the jar’s labeling was not the only cause of the incident,

the evidence suggests that it was a proximate contributing cause.

The Court concludes that evidence of Defendants’ violation of the Food Law is

relevant in establishing the applicable standard of care for Plaintiffs’ negligence claim.

Accordingly,

IT IS ORDERED that Defendants’ Motion in Limine to Preclude Reference to the

Michigan Food Law of 2000 is DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

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Copies to:

Mark F. Miller, Esq.

Mary A. Kalmink, Esq.

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