## Facts

- Douglas C. Kolarik bought a retail jar of pimento-stuffed green olives marketed as Spanish olives and used them in a salad.
- The olives were produced in Spain, machine-pitted there, shipped in bulk to defendants’ facility, and repackaged into retail glass jars in brine.
- Evidence showed machine pitting is not completely effective, and occasional pits or pit fragments can remain in commercially pitted olives.
- Federal standards for this type of product allowed a small number of pits or fragments per hundred olives.
- Kolarik alleged he bit an olive pit or fragment and fractured a tooth.
- He sued the importers/wholesalers on theories of negligence (including failure to warn), strict liability, breach of express warranty, and breach of implied warranty of merchantability.
- The defendants asserted they were not manufacturers and did not alter the condition (a residual pit fragment) that allegedly caused the injury.

## Issues

1. Whether Iowa Code § 613.18(1)(a) immunized the importers/wholesalers from strict-liability and implied-warranty product-liability claims, and whether the olives constituted a “product” under the statute.
2. Whether the label language (including “minced pimento stuffed”) created an express warranty that the olives were entirely pit-free.
3. Whether an implied warranty of merchantability claim could proceed against these defendants despite Iowa Code § 613.18(1)(a).
4. Whether summary judgment was proper on the negligence claim alleging failure to warn of possible pits or pit fragments.

## Decision

- Affirmed summary judgment for defendants on strict liability because Iowa Code § 613.18(1)(a) immunized nonmanufacturing sellers whose conduct did not cause the complained-of condition.
- Affirmed summary judgment for defendants on implied warranty of merchantability on the same statutory immunity grounds.
- Affirmed summary judgment for defendants on express warranty because the labeling did not amount to an affirmative promise that the olives contained no pits or pit fragments.
- Reversed summary judgment on negligence (failure to warn) because a genuine issue of material fact existed as to whether defendants should have warned consumers about possible pits or pit fragments.
- Remanded for further proceedings limited to the negligence failure-to-warn claim.

## Legal Principles

- Iowa Code § 613.18(1)(a) can bar strict-liability and implied-warranty product-liability claims against nonmanufacturing sellers when they are not assemblers, designers, or manufacturers and their conduct did not contribute to the injurious condition.
- Food items, including packaged olives, may qualify as a “product” for purposes of Iowa’s product-liability seller-immunity statute.
- Descriptive label language about stuffing or preparation does not, without a clear affirmative promise, create an express warranty that a food product is free from all residual natural fragments.
- Statutory protection for nonmanufacturing sellers in product-liability theories does not automatically foreclose negligence; a failure-to-warn claim may proceed if evidence permits a factfinder to conclude a reasonable warning was required.

## Conclusion

The Iowa Supreme Court held the importers/wholesalers were statutorily immune from strict liability and implied warranty claims and that the label did not create an express warranty of pit-free olives, but it allowed the negligence failure-to-warn claim to proceed because factual disputes remained about the need for a warning regarding possible pits or pit fragments.


Kolarik v. Cory Int'l Corp., 721 N.W.2d 159 (Iowa 2006)