Livingston v. Marie Callenders, Inc.
85 Cal. Rptr. 2d 528, 99 Daily Journal DAR 5401, 72 Cal. App. 4th 830 (1999)
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Rule of Law:
A seller may be held strictly liable for failure to warn if a product contains an ingredient to which a substantial number of people are allergic, the consumer would not reasonably expect to find the ingredient in the product, and the seller knew or should have known of the ingredient's presence and the danger.
Facts:
- David Livingston, who has asthma, went to a Marie Callenders restaurant for lunch.
- He asked a waitress if the restaurant's vegetable soup contained monosodium glutamate (MSG).
- The waitress assured Livingston that the soup did not contain MSG.
- Relying on this information, Livingston ordered and consumed the soup.
- In fact, the vegetable soup did contain MSG.
- After consuming the soup, Livingston suffered a severe adverse reaction, resulting in respiratory arrest, cardiac arrest, and brain damage.
Procedural Posture:
- David Livingston sued Marie Callenders No. 24 and other related entities in a California trial court.
- In pre-trial proceedings, the trial court struck Livingston's cause of action for strict liability.
- The trial court also dismissed all defendants except for the specific restaurant, Marie Callenders No. 24.
- The case proceeded to trial against the remaining defendant solely on the negligence cause of action.
- A jury returned a special verdict finding that the defendant was not negligent.
- Following the jury verdict, the trial court entered a judgment in favor of the defendant.
- Livingston appealed the trial court's dismissal of his strict liability claim to the Court of Appeal.
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Issue:
Under a strict liability failure-to-warn theory, does a restaurant have a potential duty to warn customers that a food product contains an ingredient to which a substantial number of people are allergic, when the consumer would not reasonably expect to find that ingredient in the product?
Opinions:
Majority - Turner, P. J.
Yes, a restaurant may have a duty under a strict liability theory to warn customers about the presence of an allergenic ingredient. The court held that California law incorporates the rule from the Restatement (Second) of Torts § 402A, comment j, which applies to sellers of products, including food served in restaurants. Under this rule, a cause of action for strict liability failure to warn exists where a product contains an ingredient to which a substantial number of people are allergic, the ingredient's presence is unexpected, and the seller knew or should have known of its presence and the danger. The trial court erred in dismissing the claim by finding there was nothing inherently wrong with MSG; the defect alleged is not the ingredient itself, but the failure to warn of its presence. Whether the conditions of comment j are met—such as whether a 'substantial number' of people are allergic to MSG and whether a consumer would 'reasonably not expect' it in vegetable soup—are questions of fact that must be decided by a jury, not dismissed by a judge as a matter of law.
Analysis:
This decision solidifies the application of strict liability failure-to-warn principles to food allergens in the context of restaurant-served food, treating it like any other manufactured product. By applying the Restatement's comment j, the court clarifies that a food item does not need to be inherently defective for liability to attach; the failure to warn about an unexpected, common allergen can itself render the product defective. This ruling makes it more difficult for defendants in food allergy cases to obtain dismissals before trial, as it frames the key questions—such as what constitutes a 'substantial number' of allergic people and what a consumer 'reasonably expects'—as issues of fact for a jury. Consequently, it places a greater onus on restaurants to be aware of and potentially disclose the presence of common allergens in their dishes.
