Dawson Cross 1

Garrett Dawson & Aidan Cross

Prof. Hogg

LGST 3010

October 31, 2019

[TITLE]

Facts

On April 14th, 2014, Richard Kirk ingested a candy containing a large dose of THC

purchased from Nutritional Elements Inc, resulting in a psychotic break and Kirk murdering his

wife by gunshot. Nutritional Elements Inc, the marijuana dispensary, and Gaia’s Garden LLC,

the manufacturer and distributor of the candy, both faced suit from the plaintiffs. The candy itself

was a marijuana-infused “Karma Kandy Orange Ginger” containing 101 mg of THC,

substantially more than the typical 5-10 mg dosage for edible products (Leafly).

The expected effects of a THC infused candy such as this would include feelings of

euphoria and slightly impaired motor function and coordination, however, Kirk experienced

effects reminiscent of cannabis overdose. Following the consumption of this candy, Richard Kirk

experienced substantial psychotic effects that allegedly caused him to shoot and kill his wife.

Kristine Kirk, Richard Kirk’s wife, called 911 to report her husband’s concerning behavior but

was killed during the call in the presence of their three children (CannabisLaw). The killing that

took place resulted in Richard Kirk being charged with first-degree murder, kicking off the legal

battle which will determine liability for Kristine’s wrongful death. Following the death of

Kristine Kirk, a lawsuit against Rickard Kirk was filed by the parents of the deceased wife on

behalf of their children. In the suit, the Kirk family claims that the product’s packaging contained

an insufficient warning of the potential negative side effects and that the product may have been
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negligently manufactured to contain too strong a dose of THC and was thusly not reasonably

safe in formulation for consumption.

Issue

The issue, in this case, is whether Nutritional Elements Inc and Gaia’s Garden LLC was

negligent in the manufacturing, packaging, or labeling of the “Karma Kandy Orange Ginger”

product. In determining whether the defendants are strictly liable and negligent, the plaintiffs

must prove that the misconduct of which the defendant is accused satisfies the five elements of

negligence.

Rule

According to Cornell Law School, negligence is “A failure to behave with the level of

care that someone of ordinary prudence would have exercised under the same

circumstances. The behavior usually consists of actions, but can also consist of omissions when

there is some duty to act (e.g., a duty to help victims of one's previous conduct).” There are many

forms of negligence but none require intent. All forms of negligence require five elements, which

are the duty of care, a breach of the duty of care, causation, proximate cause, and damages.

The first element is the duty of care, which is the responsibility of a person or

organization to take all reasonable measures necessary to prevent activities that could result in

harm to other individuals and/or their property. Those who manufacture products owe a duty of

care to those who purchase them. The manufacturer must ensure that the products must be

reasonably safe for others to use. Products must also carry warnings about any potential dangers

that can result from using the product. For instance, while an axe is not known for being “safe”

to use, it should be reasonably safe enough that it is not impossible to use safely. It must also
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have an overt or obvious warning label informing the customer of how he or she can become

injured and the steps he or she can take to prevent this.

The next element of negligence is the breach of the duty of care. When a consumer acts

in an “unreasonable” manner they can breach the duty of care. The reasonable person standard of

care is an objective standard, which depends on the nature of the relationship and the subjective

characteristics of the plaintiff. Whether the behavior was unreasonable or not depends on a

combination of law and fact. The court considers the likelihood the product or service will injury

a party, along with the potential severeness of the injury, and balanced against the interest he or

she must sacrifice to avoid the risk.

The element of negligence is causation, which is conducted through the “but for”

standard. A simple concept to understand, the standard poses the question but for the defendants

actions, the plaintiff would not have suffered the injury. For example, if Tom is eating a banana

and throws his peel on the ground as Sam, who is riding on a skateboard, trips and falls over it

and breaks his leg. But for Tom’s actions, Sam wouldn’t have broken his leg.

The next element is proximate causation. While causation looks for the action the

defendant took, the proximate cause is what directly caused the incident. Courts use the

foreseeability test in order to measure how liable a defendant is for the accident. The test simply

asks if the defendant could have reasonably foreseen their actions to cause the incident. For

example if Bill drops a glass box with a snake in it onto the ground and it shatters leaving glass

on the floor and a loose snake. Bill would be liable for anyone the snake or glass injuries

directly, but if someone walks by and picks up a shard and uses it to commit murder then bill

wouldn’t be liable because he couldn’t have reasonably foreseen the murder.

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The last element of negligence are damages. The plaintiff has to prove that they were

actually injured in some way. The plaintiff has to establish that they or their property physical,

psychological, or economic harm. These damages are not mutually exclusive. Someone could

have broken their leg and as a result of that injury not be able to work for a few months causing

physical and economic damages.

Analysis

Negligence Analysis

In order for the plaintiffs to prevail on a strict liability negligence claim, they must prove

that all five elements of negligence were present in the defendant’s behavior. Thus, the plaintiffs

must prove that the defendant had a duty of care, that the duty of care was breached, that there

was a causal relationship between the defendant’s behavior and the legal injury, proximate cause,

and that legal damages occurred as a result of the defendant’s conduct. Should the plaintiffs

prove strict liability in a negligence case such as Kirk v. Gaia, the court would impose liability

upon the defendant regardless of the defendant’s intent or actions. Strict liability is typically

reserved for dangerous activities where a negligently manufactured product could cause

substantial harm to a consumer. In this case, should the plaintiffs prove the five elements of

negligence, the defendant will be strictly liable.

Duty of Care

In establishing whether Gaia’s Garden LLC has the duty of care to ensure that the

plaintiff does not suffer any unreasonable harm or loss, one must examine if the professional

standard of care extends to the manufacturer. The law requires that a manufacturer exercise a
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standard of care that is reasonable for those who are experts in manufacturing similar products,

THC infused edibles in this case. The standard of care which would be reasonable for those

manufacturing THC infused candies includes but is not limited to: proper and sufficient warning

labels, sufficient testing prior to sale, negligent product design, and improper advertisement. For

a product so powerful as to cause a psychotic break in Richard Kirk, a reasonable manufacturer

would clearly advertise the potentially negative reactions and side effects to the ingestion of the

product. Furthermore, a reasonable manufacturer wouldn’t design a product so much more

powerful than the industry standard without undergoing substantial testing. The clear potential,

and later fruition, for danger and harm to Richard Kirk and those around him clearly establishes

a duty of care for the defendant.

Breach of Duty of Care

The next step to establish in the five steps of negligence is whether Gaia’s Garden LLC

breached the aforementioned duty of care, causing legal injury to the plaintiff. The law states that

the product at hand must have breached the duty which would be reasonable for a manufacturer

of THC infused edibles. It is apparent that the defendant did not properly test the product as its

potency was of an unreasonable scale, which in conjunction with insufficient warning labels,

breached the duty of care that Gaia’s Garden LLC owed Richard Kirk. A proper label

representing the substantial psychosis that Kirk experienced would have deterred him from

purchasing and ingesting the product in the first place and would have prevented the damages

suffered by the plaintiffs. The defendant’s failure to ensure that no unreasonable harm or loss

befell the plaintiffs positively represents a breach in the duty of care owed to the customer by the

edible manufacturer.