## Facts

- David Livingston, a restaurant customer with asthma and severe sensitivity to monosodium glutamate (MSG), ate at a Marie Callender’s restaurant.
- The restaurant advertised its vegetable soup as made “from scratch” with “the freshest ingredients” every day.
- Before ordering, Livingston asked the waitress whether the vegetable soup contained MSG and stated he had asthma; he was allegedly assured it did not.
- Livingston ordered and consumed the soup; it allegedly contained MSG.
- He alleged severe medical consequences from the MSG exposure, including respiratory arrest, hypoxia, cardiac arrest, and brain damage.
- He asserted strict products liability on the theory that the soup was defective because it was marketed/served without adequate warning of MSG for consumers with sensitivities.

## Issues

1. Whether food served in a restaurant can be treated as a “product” for strict products liability failure-to-warn purposes.
2. Whether Restatement (Second) of Torts § 402A, comment j permits a strict-liability failure-to-warn claim when food contains an ingredient to which a substantial number of people are allergic or sensitive, and the risk is not generally known or reasonably expected.
3. Whether the trial court erred by dismissing the strict-liability failure-to-warn claim as a matter of law, despite a defense verdict on negligence.

## Decision

- The Court of Appeal reversed the dismissal of the strict-liability failure-to-warn cause of action.
- The court held the complaint stated a cognizable strict-liability failure-to-warn theory under Restatement § 402A, comment j, based on alleged MSG content in the soup.
- The court remanded for a limited retrial on the strict-liability failure-to-warn theory only.
- The negligence defense verdict was not disturbed.
- The court emphasized it was not deciding that restaurants always (or ever) have a duty to warn about MSG; the existence and scope of any duty depended on factual development.

## Legal Principles

- Under Restatement (Second) of Torts § 402A, comment j, a seller may be strictly liable for failure to warn if a product contains an ingredient to which a substantial number of the population are allergic or sensitive, the danger is not generally known or not reasonably expected in the product, and the seller knew or should have known of the ingredient and its danger.
- A product may be “defective” for strict-liability purposes because it is marketed without adequate warnings, even if it is generally safe for most consumers.
- Negligence and strict-liability failure-to-warn are distinct theories: negligence turns on the reasonableness of conduct, while strict liability turns on whether the product was defective due to inadequate warnings.
- A defense verdict on negligence does not, by itself, defeat a strict-liability theory that was removed from the case before trial.

## Conclusion

The appellate court ruled that a restaurant customer could pursue a strict products liability failure-to-warn claim under Restatement § 402A, comment j based on alleged MSG in soup and resulting injury, and it ordered a limited retrial on that theory while leaving the prior defense verdict on negligence intact.


Livingston v. Marie Callender's, Inc., 72 Cal. App. 4th 830, 85 Cal. Rptr. 2d 528 (Ct. App. 1999)