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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 150Pe SA, a Spanish company, was named as an additional defendant in the district court action, but no jurisdiction was obtained over that entity. 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.
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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

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