## Facts

- Philomena and Joseph DiGregorio operated Quality Market, a retail grocery store in Burlington, Vermont.
- Quality Market purchased bananas from Champlain Valley Fruit Co., a wholesaler.
- A glass fruit thermometer inserted by Champlain was inside one banana.
- Quality Market sold the bananas at retail; a customer, Barbara Malloy, was injured when she bit into the banana and struck the thermometer or its fragments.
- Malloy sued Quality Market for negligence and breach of warranty; Champlain was later joined as a defendant.
- Quality requested that Champlain undertake Quality’s defense; Champlain refused, and Quality retained counsel.
- The Malloy case settled: Malloy received $1,500, with Quality paying $300 and Champlain paying $1,200.
- On stipulated facts, Quality sued Champlain seeking reimbursement for its $300 settlement payment and reasonable defense expenses.
- The trial court entered judgment for Quality for $968.23; Champlain appealed.

## Issues

1. Whether a retailer that settles a consumer’s injury claim arising from defective food supplied by a wholesaler may recover indemnity (including defense expenses) from the wholesaler, or is barred as a joint tortfeasor.
2. Whether the retailer’s failure to discover the defect constitutes “active fault” that defeats indemnity.

## Decision

- The Vermont Supreme Court affirmed the judgment for Quality.
- The court held Quality was not barred as a joint tortfeasor because its responsibility to the consumer was secondary and derivative.
- On the stipulated record, Quality’s most that could be said of its misconduct was failure to discover a defect introduced by Champlain.
- Champlain, having inserted the thermometer and supplied the defective bananas, bore primary responsibility and was required to reimburse Quality for its settlement contribution and reasonable defense expenses.

## Legal Principles

- Under the Uniform Sales Act, the sale of food carries an implied warranty that the food is wholesome and fit for human consumption at the time of sale.
- The bar on contribution among joint tortfeasors applies when parties are in pari delicto as active participants in the same wrong.
- Indemnity is available where one party’s liability to the injured person is technical, derivative, or secondary, and the other party’s breach or wrongdoing is primary.
- In an agreed case submitted on stipulated facts, appellate review is confined to the record; necessary inferences favor the prevailing party below, and extra-record assertions cannot supply “active fault.”

## Conclusion

Because the wholesaler created the defect and the retailer’s liability to the injured consumer was only secondary due to implied warranty in the chain of sale, the retailer could recover indemnity from the wholesaler for its settlement payment and reasonable defense costs, and the judgment for the retailer was affirmed.


DiGregorio v. Champlain Valley Fruit Co., 255 A.2d 183 (Vt. 1969)