Pl - Livingston
Df - Marie Callenders
The Pl informed waitress that he had asthma and wanted to know if the
soup contained MSG.
The waitress said it did not.
The Pl ate a bowl of soup and suffered a severe adverse reaction.
It is undisputed that the bowl did contain MSG.
Strict liability that the MSG rendered the soup defective.
Negligence, breach of implied warranty, breach of express warranty,
negligent misrepresentation, and intentional spoliation.
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
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."
Agrees. Remand for a limited retrial on the theory of strict
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
knowledge, actual or constructive is a component of strict
liability on the failure-to-warn theory? Yes
Brown clearly implied that knowledge is also a component of strict
liability for failure to warn in cases other than prescription
Failure to warn Strict Liability vs. Negligence
(Duty of care)
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.
liability (focus on the product)
Strict liability is not concerned with the standard of due care or the
reasonableness of a manufacturers 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.
The reasonableness of the Df - failure to warn is immaterial.
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. . . .
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
Cases of adverse allergic or idiosyncratic reactions involve a special
subset of products that may be defective because of inadequate
warnings. . .
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.
A defendant may be liable to a plaintiff who suffered an allergic
reaction to a product on a strict liability failure to warn
the defendants product contained an
ingredient to which a substantial number of the population are
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 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.