               IN THE SUPREME COURT OF IOWA
                               No. 60 / 04-1647

                            Filed September 8, 2006


DOUGLAS C. KOLARIK,

      Appellant,

vs.

CORY INTERNATIONAL CORPORATION, ITALICA IMPORTS, and
TEE PEE OLIVES, INC.,

      Appellees.


      Appeal from the Iowa District Court for Johnson County, William L.

Thomas, Judge.



      Plaintiff seeking damages for broken tooth appeals from adverse

summary judgment in products liability action against importers and

wholesalers of pitted olives. AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.



      Steven E. Ballard and Patrick J. Ford of Leff Law Firm, L.L.P.,

Iowa City, for appellant.



      David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen,

Dubuque, for appellees.
                                              2

CARTER, Justice.

       Plaintiff, Douglas C. Kolarik, appeals from an adverse summary

judgment in his product-liability action against Cory International

Corporation, Italica Imports and Tee Pee Olives, Inc., importers and

wholesalers of olives imported from Spain. 1 Plaintiff, relying on theories of

negligence, strict liability, and breach of express and implied warranty,

sought to recover damages from defendants for the fracturing of a tooth

when he bit down on an olive pit or pit fragment.

       The district court granted summary judgment for defendants as to

each of plaintiff’s theories of recovery.            After reviewing the record and

considering the arguments presented, we affirm the district court’s ruling

with regard to plaintiff’s theories of strict liability, and express and implied

warranty, but conclude that, with respect to plaintiff’s negligence claim

based on an alleged failure to warn, there remains a genuine issue of

material fact requiring denial of summary judgment on that theory of

recovery.

       Plaintiff has alleged that he opened a jar of pimento-stuffed, green

olives, which had been imported and sold at wholesale by defendants. He

alleges that he used several of these olives, which bore the label Italica
Spanish Olives, in the preparation of a salad and, when eating the salad, bit

down on an olive pit or pit fragment and fractured a tooth.

       The motion papers reveal that defendants are importers and

wholesalers of Spanish olives grown by various Spanish companies. 2 They

obtain bulk shipments of pimento-stuffed, green olives shipped in 150-


       1Te  Pe SA, a Spanish company, was named as an additional defendant in the
district court action, but no jurisdiction was obtained over that entity.
       2The   defendants are affiliated companies. Plaintiff has not attempted in the district
court or on appeal to identify the role that these entities individually played in placing the
olives in the stream of commerce.
                                     3

kilogram drums to their plant in Norfolk, Virginia. There, the drums are

emptied and the olives are washed and placed in a brine solution in glass

jars suitable for retail sale under various names including Italica Spanish

Olives. When defendants receive the olives, they are inspected for general

appearance, pH, and acid level. Defendants rely on their Spanish suppliers

for quality control of the pitting and stuffing process. Other facts that are

significant in reviewing the summary judgment ruling will be discussed in

our consideration of the legal issues presented.

       I. Standard of Review.

       Summary judgment rulings are reviewed for correction of errors of

law.   Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).

Summary judgment is appropriate if there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of

law. Iowa R. Civ. P. 1.981(3). Further considerations when reviewing a

motion for summary judgment are summarized as follows:

              “A factual issue is material only if the dispute is over
       facts that might affect the outcome of the suit. The burden is
       on the party moving for summary judgment to prove the facts
       are undisputed. In ruling on a summary judgment motion, the
       court must look at the facts in a light most favorable to the
       party resisting the motion. The court must also consider on
       behalf of the nonmoving party every legitimate inference that
       can be reasonably deduced from the record.”

Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004)

(quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001)).

       II. Strict Liability and Breach of Implied Warranty.

       In sustaining defendants’ motion for summary judgment, the district

court concluded that defendants were immune from plaintiff’s strict-liability

claim and implied-warranty-of-merchantability claim by reason of Iowa

Code section 613.18(1)(a) (2001). That statute provides:
                                       4
            1. A person who is not the assembler, designer, or
      manufacturer, and who wholesales, retails, distributes, or
      otherwise sells a product is:
             a. Immune from any suit based upon strict liability in
      tort or breach of implied warranty of merchantability which
      arises solely from an alleged defect in the original design or
      manufacture of the product.

Iowa Code § 613.18(1)(a).

      Plaintiff urges that section 613.18(1)(a) does not apply to his strict-

liability and breach-of-implied-warranty-of-merchantability claim.           He

contends that defendants were assemblers of the olives at issue here, thus

removing them from the immunity provisions of the statute.                  The

assembling occurs, he asserts, when defendants remove bulk olives from

drums and repackage them in jars. We disagree that this repackaging

process excludes defendants from the immunity granted by the statute.
      We are convinced that the assemblers’ exclusion contained in section

613.18(1)(a) is aimed at those situations in which an assembling process

has some causal connection to a dangerous condition in the product that

gives rise to a strict-liability claim or a product condition that constitutes a

breach of an implied warranty of merchantability. Because the repackaging

of the olives by defendants did not contribute to the condition that underlies

plaintiff’s product-liability claim, defendants are afforded the immunity

granted by the statute.

      In the alternative, plaintiff argues that section 613.18(1)(a) does not

apply because olives are not a “product” as that term is used in that

statute. This argument is premised on his assertion that a product is

something that has been produced by human action. He contends that no

human action has produced the olives that defendants import and sell. In

his written argument, plaintiff states this point as follows:

      No producer can mix ingredients or connect component pieces
      in order to create an olive. The creation of an olive is a
                                        5
      phenomenon of nature over which no human can exercise
      control or influence. Thus, olives are neither assembled,
      designed, nor manufactured.

To the contrary, we are reasonably certain that human effort does play a

role in the growing and commercial distribution of olives. A standard legal

dictionary defines “product” as follows:

      Something that is distributed commercially for use or
      consumption and that is usually (1) tangible personal property,
      (2) the result of fabrication or processing, and (3) an item that
      has passed through a chain of commercial distribution before
      ultimate use or consumption.

Black’s Law Dictionary 1225 (7th ed. 1999).             We are satisfied that

agricultural commodities may be products as that term is used in section

613.18(1)(a). That statute is aimed at situations giving rise to product

liability actions, and food products may produce such claims.                 See

Restatement (Third) of Torts: Product Liability § 7 (1998) (one engaged in

the business of selling or distributing food products is subject to liability for

harm to persons caused by defective product). Consequently, the district

court did not err in applying that statute to bar plaintiff’s strict-liability and

breach-of-implied-warranty-of-merchantability claims.
      III. Express Warranty.

      Plaintiff urges the words “minced pimento stuffed,” contained on the

label of the jar of olives, constituted an express warranty that the olives had

been pitted.    Iowa Code section 554.2313(1) provides that an express

warranty is created by the following:

             a. Any affirmation of fact or promise made by the seller
      to the buyer which relates to the goods and becomes part of the
      basis of the bargain . . . .
            b. Any description of the goods which is made part of the
      basis of the bargain . . . .
                                           6

Although both the express-warranty and implied-warranty provisions of the

U.C.C. are drafted so as to determine the rights and obligations of the

immediate parties to a sales transaction, the Code also provides:

              A seller’s warranty whether express or implied extends to
       any person who may reasonably be expected to use, consume
       or be affected by the goods and who is injured by breach of the
       warranty.

Iowa Code § 554.2318. Under the facts of the present case, plaintiff falls

within this class of extended beneficiaries. 3              Official comment 5 to

accompanying U.C.C. section 2-607 (Iowa Code § 554.2607) states that

remote buyers falling within this class of beneficiaries are not required to

give the notice to seller that is otherwise required by section 554.2607(3)(a).

This was the holding in McKnelly v. Sperry Corp., 642 F.2d 1101, 1107 (8th

Cir. 1981) (applying Iowa law).

       The vice president of quality control for defendants testified in his

deposition that olives must be pitted in order to be stuffed because the

pitting process provides the cavity in which the pimento stuffing may be

placed. This witness also testified that

       [t]here’s a reasonable expectation that most of the pits would
       be removed, and there’s some expectation that it’s not a perfect
       world, and some of the pits or fragments may not be removed.
       I think anytime you’re dealing with natural products—see, this
       goes back to what we were talking about before. When the
       olives go into those machines, the machines do very well, but,
       you know, the olives have different shapes. And the reason
       they don’t get pitted right all the time is because of the different
       shapes of the olives.

The witness asserted that, because large quantities of pitted and stuffed

olives are received in bulk form, no practical method of inspection exists.

This witness’s statements concerning the inevitability of some pits or pit

       3These   beneficiaries do not include remote buyers seeking economic-loss damages.
Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa 1995); Beyond the Garden
Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309 (Iowa 1995).
                                      7

fragments being in the product was corroborated by plaintiff’s own assertion

that United States Department of Agriculture standards for pitted olives

allow 1.3 pits or pit parts per one hundred olives.

      Comment 7 of the official comments that accompany U.C.C. section

2-313, from which Iowa Code section 554.2313 is taken, states:

      Of course, all descriptions by merchants must be read against
      the applicable trade usages with the general rules as to
      merchantability resolving any doubts.

U.C.C. § 2-313 cmt. 7. In discussing this official comment of the U.C.C.

drafters, a federal court has declared: “[E]xpress warranties . . . must be

read in terms of their significance in the . . . trade and relative to what

would normally pass in the trade without objection under the contract

description.”   Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428

F. Supp. 364, 373 (E.D. Mich. 1977).        Given the evidence of how the

defendants receive and resell these olives, it is unrealistic to impart to the

description “minced pimento stuffed” the meaning that defendants are

guaranteeing that the olives in the jar are entirely free of pits or pit

fragments. It is much more realistic to interpret the description as only

warranting that the particular jar of olives contains pimento-stuffed, green

olives that would pass as merchantable without objection in the trade.

Plaintiff has provided no evidence that the contents of the jar, taken as a

whole, did not live up to this warranty. The district court did not err in

denying plaintiff’s claim based on express warranty.

      IV. Negligence.

      Much of the argument of both parties with regard to plaintiff’s

negligence claim turns on the decision in Brown v. Nebiker, 229 Iowa 1223,

296 N.W. 366 (1941). In that case, the plaintiff’s decedent, a restaurant

patron, swallowed a bone while eating a pork chop. The bone lodged in his
                                      8

esophagus and complications from the surgical removal that followed led to

the patron’s death.      The patron’s personal representative sued the

restaurant owner on theories of implied warranty and negligence. At the

trial, several witnesses testified that they had ordered pork chops at the

same restaurant on the same evening and that the pork chops were served

with the bone left intact.

      The district court directed a verdict for the defendant on both the

warranty and negligence claims.       On appeal this court held that the

common-law warranty that flows to patrons of a restaurant protected them

against food that was unfit for human consumption and against having

foreign objects in the food. The court held that pork chops served with the

bones in were not unfit for human consumption and that, because bones

are naturally contained in pork, they do not constitute a foreign object. On

the negligence claim, we indicated that a restaurant owes no duty to its

patrons to serve meat that is entirely free of bones that are natural to the

product.

      In seeking to overturn the district court’s grant of summary judgment

on his negligence claim, plaintiff urges that, irrespective of its natural

components, a food product may be marketed in a manner in which the
consumer’s reasonable expectations will be that certain natural components

of the product have been removed. He asserts that this is the case with

respect to the pimento-stuffed olives at issue in the present case.

      Defendants seek to uphold the district court’s summary judgment by

espousing the virtues of Brown v. Nebiker’s pronouncements concerning

consumer expectations as to the natural components of food products.

They argue in their brief, “[s]urely there is no one who does not recognize, if

he thinks at all, that natural products may well be present, such as bones

in fish and meat and pits in olives and seeds in oranges.”
                                      9

      We are unable to attribute any more to the Brown v. Nebiker decision

than a recognition that, when pork chops are served in their natural state

with the bone left in the meat, the presence of bone fragments must be

anticipated. The opinion sheds little light on the requirements placed on a

seller of food products in various stages of preparation or processing. We

share the views expressed by the Wisconsin Supreme Court with regard to

this matter:

             The “foreign-natural” test . . . does not recommend itself
      to us as being logical or desirable. It is true one can expect a
      T-bone in T-bone steak, chicken bones in roast chicken, pork
      bone in a pork chop, pork bone in spare ribs, a rib bone in
      short ribs of beef, and fish bones in a whole baked or fried fish,
      but the expectation is based not on the naturalness of the
      particular bone to the meat, fowl, or fish, but on the type of
      dish served containing the meat, fowl, or fish. There is a
      distinction between what a consumer expects to find in a fish
      stick and in a baked or fried fish, or in a chicken sandwich
      made from sliced white meat and in roast chicken. The test
      should be what is reasonably expected by the consumer in the
      food as served, not what might be natural to the ingredients of
      that food prior to preparation.

Betehia v. Cape Cod Corp., 103 N.W.2d 64, 68-69 (Wis. 1960). Other courts

espousing this view include Zabner v. Howard Johnson’s, Inc., 201 So. 2d

824, 826 (Fla. Ct. App. 1967); Phillips v. Town of West Springfield, 540

N.E.2d 1331, 1332-33 (Mass. 1989); O’Dell v. DeJean’s Packing Co., 585

P.2d 399, 402 (Okla. Ct. App. 1978).       It is also the view expressed in

Restatement (Third) of Torts:     Product Liability section 7, comment b

(product danger to be determined by reference to reasonable consumer

expectations within the relevant context of consumption).
      We find the principle applied by the Wisconsin court in Betehia with

respect to restaurant food to be equally applicable to situations involving

processed foods contained in cans or jars. In Bryer v. Rath Packing Co., 156

A.2d 442 (Md. Ct. App. 1959), a child’s throat was injured by a chicken
                                      10

bone while she was eating chow mein in a school cafeteria, which had

purchased the chow mein in sealed cans from the defendant food processor.

The trial court directed a verdict in favor of the defendant. In reversing that

judgment, the Maryland Court of Appeals stated:

              The obligation of the packer of food to the ultimate
      consumer is to exercise such care in its preparation that the
      product will not cause injury to the consumer, and the amount
      of care that is required is commensurate with the danger to the
      life or health of the consumer that may foreseeably result from
      such lack of care. In the instant case the packer of the chicken
      set its own standard of care and increased the necessary
      amount of care by expressly representing on the cans sold that
      the product was ready to serve and boned. By its advertising it
      was saying to the ultimate consumer that this was chicken
      from which the bones had been removed, and this assurance
      which it must have foreseen would be relied on (as indeed it
      was in the case before us, as the cafeteria manager explicitly
      testified), required it to exercise as much care as would enable
      users to rely with reasonable safety on the assurance. This is
      not to say that the packer was an insurer, for it is clear, and
      agreed, that in the form of action brought it is not. The
      question is whether due care was exercised under the
      circumstances.

Bryer, 156 A.2d at 446. Similar reasoning was applied in Wood v. Waldorf

System, Inc., 83 A.2d 90, 93 (R.I. 1951), a case involving a chicken bone in a

can of chicken soup.

      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. Specifically, we believe that the purchaser of pimento-stuffed

olives may reasonably anticipate that the olive pits have been removed. We

need not decide whether this expectation would create an implied warranty

of merchantability because such a claim is precluded by statute in the

present case. We are convinced, however, that a seller of stuffed olives

must be cognizant that consumers will assume that the olives will be free

from pits and act on that assumption in consuming the product.
                                      11

Consistent with that expectation, a seller must exercise reasonable care to

assure that this expectation is realized. The district court erred in rejecting

plaintiff’s negligence claim by reliance on the natural component principle

that was applied in Brown v. Nebiker.

      In reviewing the motion papers to ascertain whether issues of

material fact otherwise remain concerning plaintiff’s negligence claim, we

are satisfied that it does not appear that defendants were in any manner

negligent in the processing of the olives that contained the pit that caused

harm to the plaintiff.    We conclude, however, that a genuine issue of

material fact does exist with respect to plaintiff’s claim that defendants were

negligent in not warning against the possible presence of pits or pit

fragments in the jar of olives.

      Defendants’ quality control officer testified in his deposition that the

pitting process is not one hundred percent effective. He indicated that the

presence of an occasional pit or pit fragment in the stuffed olives is

inevitable because the machine that does the pitting will fail to remove a pit

if the olive has an abnormal shape. Given this circumstance, we conclude

that a trier of fact might 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. A claim based on that theory should have

survived summary judgment.

      We have considered all issues presented and conclude that the

district court’s ruling dismissing the strict-liability claim and the claims

based on express and implied warranty should be affirmed. The ruling

dismissing the negligence claims on theories other than a failure to warn is

also affirmed. We reverse the ruling dismissing the negligence claim based
                                   12

on a failure to warn and remand the case to the district court for further

proceedings on that claim.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
