Livingston v. Marie Callenders, Inc.

85 Cal. Rptr. 2d 528 (1999)

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Nature of the Case

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Facts

P went to D for lunch. P told the waitress he had asthma and he wanted to know if the soup contained MSG. The waitress assured P the soup did not contain MSG. P ordered and consumed the soup. The soup did contain MSG, and P suffered MSG symptom complex including, but not limited to, respiratory arrest, hypoxia, cardiac arrest, and brain damage. P sued and alleged the presence of MSG in the soup rendered it defective and unfit for human consumption. P also asserted causes of action for negligence, breach of implied warranty, breach of express warranty, negligent misrepresentation, and intentional spoliation of evidence. The trial court struck P's causes of action with the exception of his negligence claim and dismissed all Ds except Marie Callenders No. 24, the restaurant. The trial court concluded 'there was nothing wrong with the soup, or the MSG in the soup. P appealed contending that a strict liability failure to warn action was warranted from the facts.