Beware of the Genetically Modified Crop: Applying Animal Liability Theory in Crop Contamination Litigation

Genetically modified crops offer vast potential economic and social benefits to farmers and society, but also threaten the profits and harvests of conventional crop farmers through genetic crop contamination. On one hand, genetically modifled crops increase farming efficiency, decrease the cost offood, and provide solutions for global hunger. On the other hand, genetically modified crops may contaminate the crops of organic and conventional farmers through genetic drift, resulting in injury to both farmers and an apprehensive public. Litigation over crop contamination is an unsettled area of the law, even after four major crop contamination incidents. While courts have held that certain tort causes of action can survive dispositive motions in such cases, juries have only found liability for crop contamination under a negligence theory thus far. At this point, litigation strategy in this growing field largely revolves around inducing settlements from seed manufacturers due to uncertainty over the viability of tort claims. Accordingly, the uncertain and unsettled current tort liability law regarding crop contamination is inadequate for representing the needs of both farmers and society. A statutory cause of action modeled upon animal liability may provide some clarity in crop contamination cases. Ifa plaintiff can prove a genetically modified seed had dangerous propensities, the manufacturer or farmer of the seed could be held strictly liable for damages resulting from its development or cultivation. However, if the seed is deemed safe akin to a domesticated animal the burden will be on the plaintiff to show that the farmer or manufacturer unreasonably breached its duty of care to prevent genetically modified crop contamination. The proposed statutory cause of action will provide a framework for crop contamination cases in the future and will ensure that the interests of both farmers and society are properly represented in the judicial system