Livingston v. Marie Callenders, Inc., 85 Cal Rptr.  2d 528

Cal. Ct. App.

1999

Chapter

16

Title

Products Liability

Page

675

Topic

Warning Defects

Quick Notes

Jury needs to determine if MSG is a harmful ingredient in which a substantial number of people are allergic.

Book Name

Torts Cases, Problems, And Exercises.  Weaver, Third Edition.  ISBN:  978-1-4224-7220-0.

Issue

o         Whether a restaurant offering vegetable soup "made from the freshest ingredients, from scratch, . . . every day," has an affirmative obligation to warn customers the soup contains monosodium glutamate (MSG)?

Procedure

Trial

o         Dismissed Pl - strict liability claim.

Appellant

o         Remand for a limited retrial on the theory of strict liability.

Facts

Reason

Rules

o         Pl - Livingston

o         Df - Marie Callenders

What happened?

o         The Pl informed waitress that he had asthma and wanted to know if the soup contained MSG.

o         The waitress said it did not.

o         The Pl ate a bowl of soup and suffered a severe adverse reaction.

o         It is undisputed that the bowl did contain MSG.

Claim

o         Strict liability that the MSG rendered the soup defective.

o         Negligence, breach of implied warranty, breach of express warranty, negligent misrepresentation, and intentional spoliation.

Trial Court

o         The trial court dismissed plaintiff's strict liability claim on the ground, as a matter of law, there was nothing wrong with the soup, or the MSG in the soup.

Pl - Arg

o         A cause of action for strict liability failure to warn exists where a product "contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, [and the seller] has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger."

App. Ct

o         Agrees.  Remand for a limited retrial on the theory of strict liability.

o         Not saying that a restaurant needs warn customer of the presence of MSG; rather, the Pl is entitled to a retrial on the failure to warn.

Whether knowledge, actual or constructive is a component of strict liability on the failure-to-warn theory?  Yes

Brown v. Superior Court

o         Brown clearly implied that knowledge is also a component of strict liability for failure to warn in cases other than prescription drug cases.

Failure to warn Strict Liability vs. Negligence

Negligence (Duty of care)

o         Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care,  i.e., what a reasonably prudent manufacturer would have known and warned about.

Strict liability (focus on the product)

o         Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturers conduct.

o         The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.

o         The reasonableness of the Df - failure to warn is immaterial.

Strict Liability Policy

o         When, in a particular case, the risk qualitatively (e.g., of death or major disability) as well as quantitatively, on balance with the end sought to be achieved, is such as to call for a true choice judgment, medical or personal, the warning must be given. . . .

o         The trier of facts will base its decision on the information scientifically available to the manufacturer and the manufacturers failure to warn.

Restatement Third of Torts

o         Cases of adverse allergic or idiosyncratic reactions involve a special subset of products that may be defective because of inadequate warnings. . .

o         The general rule in cases involving allergic reactions is that a warning is required when the harm-causing ingredient is one to which a substantial number of persons are allergic.

402A Comment j

o         A defendant may be liable to a plaintiff who suffered an allergic reaction to a product on a strict liability failure to warn theory when:

o         the defendants product contained an ingredient to which a substantial number of the population are allergic;

o         the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product;

o         and where the defendant knew or by the application of reasonable, developed human skill and foresight should have known, of the presence of the ingredient and the danger.

Class Notes

Allergic Reactions General Rule

o         For cases involving allergic reactions, a warning is required when the harm-causing ingredient is one to which a substantial number of persons are allergic.

Cmt j: warnings (Allergic Ingredient)

o         A cause of action for strict liability exist where a seller failed to give directions or warning, when

• the product Contains an ingredient to which a substantial number of the population are allergic,

and

• the ingredient is one whose danger is not generally known,

or

• if known is one which the consumer would reasonably not expect to find in the product,

         If seller has knowledge or should have knowledge.

o         Does not have to warn against common allergies (Eggs and strawberries).

o         Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous

Negligence (Focus: Duty of care)

o         The plaintiff is required to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care.  , 

o         i.e., What a reasonably prudent manufacturer would have known and warned about.

Strict liability (Focus: On the product)

o         The Plaintiff is required to ONLY prove that the Defendant did NOT adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.

o         Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturers conduct.

Rules

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Strict liability is not intended to make the manufacturer or distributor of a product its insurer. Strict liability is not absolute liability. Strict liability is invoked for three types of defects - manufacturing defects, design defects, and "warning defects," that is, inadequate warnings or failures to warn.

Strict tort liability jurisprudence based on a defect applies to food served in a restaurant

Strict Liability

Failure to warn in strict liability differs markedly from failure to warn in the negligence context. Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, that is, what a reasonably prudent manufacturer would have known and warned about. Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer's conduct. The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. Thus, in strict liability, as opposed to negligence, the reasonableness of the defendant's failure to warn is immaterial.

Negligence

• A reasonably prudent manufacturer might reasonably decide that the risk of harm was such as not to require a warning as, for example, if the manufacturer's own testing showed a result contrary to that of others in the scientific community. Such a manufacturer might escape liability under negligence principles. In contrast, under strict liability principles the manufacturer has no such leeway; the manufacturer is liable if it failed to give warning of dangers that were known to the scientific community at the time it manufactured or distributed the product. Similarly, a manufacturer could not escape liability under strict liability principles merely because its failure to warn of a known or reasonably scientifically knowable risk conformed to an industry-wide practice of failing to provide warnings that constituted the standard of reasonable care.

Duty to Warn Allergic Reaction

o        Cases of adverse allergic or idiosyncratic reactions involve a special subset of products that may be defective because of inadequate warnings.

o        The general rule in cases involving allergic reactions is that a warning is required when the harm-causing ingredient is one to which a substantial number of persons are allergic.

o        The ingredient that causes the allergic reaction must be one whose danger or whose presence in the product is not generally known to consumers.

o        When the presence of the allergenic ingredient would not be anticipated by a reasonable user or consumer, warnings concerning its presence are required.