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Some Liability Issues for Massachusetts Shellfish Farmers
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Lastly, it is important to remember that a legal duty of care is owed only to lawful visitors. Under the Colonial Ordinances of 1641–1647, private ownership of tidelands was allowed, but the public’s right to fish, fowl, and navigate the area was retained. This has been interpreted to mean that “there is no general right of the public to pass over the [tidal flats] or to use it for bathing purposes” (Wellfleet v. Glaze, 403 Mass. 79, 85 (Mass. 1988)), but that the public has a right to walk along the beach between the high and the low water mark in order to access public areas for the purpose of fishing (Barry v. Grela, 372 Mass. 278, 279 (Mass. 1977)). As such, it is legal for a person to pass over privately owned tidelands and licensed areas to access public waters, as long as the intrusion is for the purpose of fishing in open areas. In this situation, both the shellfish farmer and the landowner would owe a duty of care to that person. Although visitors that are in the area simply for bathing purposes do not have a right of access and therefore are owed no duty of care, it is in everyone’s best interests to prevent injury to any visitors.

Many shellfish farmers hire a crew to help out with chores on the farm.
Photo by Andrew Cummings.

Injury to an Employee
Working a shellfish farm is a lot of work. Occasionally, license holders may decide to hire someone to help out. What happens if that person gets hurt while working on the farm? In Massachusetts, an employee is entitled to compensation from the employer for “personal injury arising out of and in the course of his employment” (§ 26 of Chapter 152, Mass. Gen. Laws). An employer is usually defined as someone who has the authority to hire and fire people, controls the work schedule, gets the benefit of the work of the employees and is responsible for working conditions. All private employers are required by law to purchase insurance or qualify as self-insurers.

But what is an “employee”? The definition is fairly broad: “a person in the service of another under any contract of hire, express or implied, oral or written” (§ 1(4) of Chapter 152 Mass. Gen. Laws). Individuals may be hired as independent contractors, but this is usually done for seasonal or casual workers, and not for long-term hires (see the Resources section for information on independent contractors). Independent contractors are not considered employees and coverage is optional. The decision to hire helpers as employees or independent contractors should be carefully considered, and put in writing so both the employer and employee are aware of this decision and its implications.

What about volunteers? “Individuals who volunteer or donate their services, usually on a part-time basis, for public service or religious or humanitarian objectives are not considered to be employees of those organizations.” (Labor and Employment in Massachusetts: A Guide to Employment Laws, Regulations & Practices, § 2-6 (2003)). Although a volunteer is not an employee, a shellfish farmer has a responsibility to protect volunteers from harm. This duty of care arises because there is a special relationship between the two parties; a special relationship does exist between an employer and a volunteer, because the volunteer is providing a service to the farmer with the farmer’s consent. The work of the volunteer benefits the shellfish farmer and a farmer must exercise reasonable care when accepting the services of volunteers. While the work environment should be made as safe as possible, volunteers should be warned about the dangers of harvesting shellfish. If a shellfish farmer were to be negligent regarding the safety of volunteers, the farmer would be liable for injuries.

Shellfish Consumption Liability
Another issue of concern to shellfish farmers is liability associated with the consumption of seafood. If a person consumes shellfish and becomes ill or suffers some other injury, such as a chipped tooth, there are three causes of action upon which a lawsuit could be based: 1) strict product liability, 2) negligence, and 3) breach of warranty.

The most common cause of action in food-borne illness and injury litigation is strict product liability. In general, an individual engaged in selling or distributing a defective food product is liable for the harm caused by the product’s defect. What makes a product defective? A product is defective if it contains a manufacturing defect, is defective in design, or contains inadequate warnings. (Restatement (Third) of Torts, Products Liability, §2 (1998)). Noncompliance with an applicable product safety statute or regulation, such as Hazard Analysis and Critical Control Point (HACCP) regulations, can also render the product defective.

A harm-causing ingredient of a food product constitutes a manufacturing defect if a reasonable consumer would not expect the food product to contain that ingredient. For example, the Massachusetts Supreme Judicial Court has held that a restaurant owner is not liable for personal injuries suffered by a diner when a fish bone lodged in her throat, because a consumer should reasonably expect to find bones in fish chowder. (See Webster v. Blue Ship Tea Room, Inc., 198 N.E.2d 309, 312 (Mass. 1964)). The fish chowder was, therefore, not defective. In the case of shellfish, consumers should exercise reasonable caution when consuming such foods, being careful of shell fragments or small pearls.

In general, to win a lawsuit based on strict product liability, the injured party must prove that the product was defective and unreasonably dangerous when it left the defendant’s control and that the defect caused the plaintiff’s injury. Strict liability is rarely successful in food-borne illness and injury cases. Very few foods are risk-free and many contain natural occurring bacteria and other hazards like bones and shells.

Responsible shellfish farmers routinely visit their site to check
on their shellfish and maintain the gear and markers.
Photo by Andrew Cummings.

Failure to warn consumers about potential dangers can also result in negligence claims, especially if warning labels are required by law and not used. A shellfish farmer can minimize the risk of negligence claims by exercising due care, following industry guidelines, and providing the freshest shellfish possible. Furthermore, it is in the best interest of shellfish farmers and the general public to clearly post the risks associated with consumption of shellfish.

In addition to strict product liability and negligence, Massachusetts has adopted the Uniform Commercial Code, which states that a seller incurs obligations simply by selling a product, either as express or implied warranties. For a finding of liability in breach of warranty cases, no negligence on the part of the defendant is required. Rather, the injured party must only prove that the merchant sold the non-conforming food and that the food caused the injury.

In Massachusetts, an express warranty is created if the seller makes “any affirmation of fact or promise” about the goods to the buyer. (§ 2-313(1)(a) of Chapter 106, Mass. Gen. Laws). Representations can be via labels, advertisements, or sales pitches. If a shellfish farmer makes claims regarding the product, i.e., the shellfish are disease-free or safe to eat, the farmer has made an express warranty. If these representations are untrue, the farmer has breached the warranty and can be held liable for the harm caused by the product.