Earlier this year, a Growing for Market reader who sells cut flowers asked whether she could be held liable for injuries caused by her flowers – for example, if someone ate a toxic flower like larkspur, or injured an eye by rubbing sap from a Euphorbia plant in it. We took the question to attorney Rich Shell, who addresses the specific flower questions while explaining liability issues that are relevant to vegetable growers as well as flower growers.

© 2001 by Rich Schell. All rights reserved

Anyone who follows the news at all knows that almost anyone could find themselves on the wrong end of a lawsuit these days. So it is reasonable to imagine that someone who sells flowers might wonder if they could be sued if a person or animal ate their flowers and got sick.

The short answer is that of course they could be sued, but being sued is not the same thing as losing a lawsuit. All it takes for someone to be sued is for another person with a gripe and a willing lawyer or a disgruntled customer with a do-it-yourself legal kit to file the suit. However, losing a lawsuit and being forced to pay a judgment is another matter entirely because having to pay requires a cause of action sufficient to survive the legal process and produce a judgment against the seller.

Possible liability for injuries resulting from the sale of products comes from three broad areas of law: contracts, torts and applicable federal, state or local regulations.

Contract law is the first source of potential liability for flower sellers. Contract law is largely a matter of the setting and meeting of expectations. Parties come together, bargain and reach a meeting of minds. Then the goods are exchanged and payment is made. In the case of a seller of flowers, anything that specifically becomes part of the bargain is an expectation on the buyer’s part that the seller must be prepared to meet. If the seller promises “these flowers will smell exactly like a old English rose,” then the flowers shouldn’t smell like marigolds. If the flowers smell like something other than a rose, the seller is at risk of a lawsuit for the breach of his or her promise. This breach could result in the seller paying damages to compensate the buyer for the difference between what he or she bargained for and what he or she actually received. However, remember, the seller only promised that the flowers would smell like roses, not that they smelled good enough to eat. If the seller hasn’t represented that the flowers could be eaten, then their food quality should not become part of the bargain.

However, if the purchaser were buying flowers that were represented to be edible, then the flowers should be edible. Items sold for a specific purpose should be fit for their ordinary and reasonable purpose.

Tort law is the second potential source of liability for a seller of flowers. Tort law regulates the non-contractual duty one individual owes to another. Liability in tort law arises when there is a duty to exercise reasonable care, a breach of that duty and damages caused by that breach. Every person has a “duty of care” to others to conduct his or her affairs in a reasonable manner. Individuals who breach that duty and cause injury to other people or property are judged to be negligent. Similar to contract law, the essence of the law is in meeting reasonable expectations. However the big difference is that in contract law the parties negotiate this expectation, but, in tort law, they do not. Rather, in tort law, the judge or jury determines what a reasonable person in the same circumstances would have done to prevent harm to another and that is what lawyers call a question of fact. For example, if a person knew the flower they were selling caused skin irritation but sold them as a skin care product, that would clearly not be reasonable and would breach the seller’s duty to the customer. But if nobody ever used the product for skin care, then the seller might not ever have any damages to pay since recovery under tort law requires actual damages.

Tort law does not require people to take every imaginable precaution so no possible harm could ever occur, but it does require people to take precautions against foreseeable harm. If the seller knows or has reason to know that the flower they are selling resembles an edible flower, the seller should probably warn people not to eat them. Under those circumstances it is foreseeable that people might eat them. The question of whether a reasonable person would eat the flowers would be a question of fact for the judge or jury, and it could go either way.

Strict liability law is included along with tort law since the analysis is similar. Strict liability applies to a seller or maker of a product when courts may hold the seller or maker of the product liable for injuries simply because they sold or made the product. Several things must be present for this legal doctrine to apply. The item must have a defective condition that renders it unreasonably dangerous to a user or consumer when used in a reasonably foreseeable manner. Second, the seller or maker has to be engaged in the business of selling or making such products. Third, the defect must exist when the item left the seller’s or maker’s control. Fourth, the item must have reached the consumer without substantial modification or change. And finally, the defect must have been the actual cause of injury.

For the seller of flowers this source of liability turns on the question of reasonable use. For example, the use of a torch for welding is a reasonable and foreseeable use of the product; but to use that same torch to trim eyebrows is not reasonable or foreseeable. In this case, it is unlikely that the individual (now with no eyebrows) would be able to make a sustainable case in court that the use of a torch for personal grooming was a reasonable use of the product. When eating flowers was more of a rarity than it is today, an argument could have been made that human or animal consumption of flowers was so unreasonable that a seller would have no duty to warn against eating harmful flowers. But times change and now eating flowers is a hot trend. Because edible flowers are so much more popular than in the past, it could be argued that eating them is foreseeable. The prudent thing might be to place a warning on the product that it is not for consumption.

For example, decorative food items such as wax fruit or decorative ears of corn often carry warnings not to eat them. These items appear life-like and could easily fool a person or a pet. Because the possibility of eating wax fruit is clearly foreseeable, a manufacturer should be reasonably expected to warn of the danger. If the seller knew that a flower was poisonous and could be mistaken for one that was wholesome, the seller would probably have a duty to warn the purchaser because consumption of the item as a food product would then be logically foreseeable. Or if the flower had a caustic or irritating element to it, the seller should probably warn people to only handle it with gloves, since it is certainly foreseeable that people will handle their flowers. Of course, all these claims require an injury, if nobody ever suffers a loss presumably there will no claims.

The third source of potential liability arises from any applicable federal state or local regulations governing the sale of flowers in the local jurisdiction. Everyone has heard the old saying, “ignorance of the law is no excuse.” Be advised that this is not just an “old saying.” For example if a state law provides penalties for those injured by the sale of dangerous plants then the seller could be faced with paying fines for their breach of that law.

Agricultural activities may be exempt from state laws governing worker’s compensation that would otherwise apply to the employer-employee relationship. If an employee handled a toxic plant during the course of their employment and the employee was injured, he or she could bring an action against their employer under the worker’s compensation laws of their state to recover for the injuries. Worker’s compensation replaces the question of who is at fault with the principle that if the injury happens to an employee during the course and scope of their employment, the employer should pay. In order for the employee to win such a suit, it would be enough for the employee to show he or she was injured and that it occurred during the course of their employment. However, if the person handling the flower was not an employee but was an independent contractor then principles of tort law discussed earlier would apply. Likewise, if the business fits under an agricultural exemption, and does not have worker’s compensation coverage, principles of tort law would also apply.

In conclusion, it is not impossible that sellers of flowers could find themselves being sued for injuries caused by people intentionally or accidentally eating their product. The prudent seller should seek legal advice to make certain all has been done to minimize their exposure to any and all sources of liability. This could mean carrying products liability insurance and it could mean telling customers “please don’t eat the daisies.”