California Civil Jury Instructions (CACI) (2017)

1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not Prescription Drugs)—Essential Factual Elements

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1206.Strict Liability—Failure to Warn—Products Containing
Allergens (Not Prescription Drugs)—Essential Factual Elements
[Name of plaintiff] claims that the [product] was defective because it
lacked sufficient warnings of potential allergic reactions. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That a substantial number of people are allergic to an ingredient
in the [product];
3. That the danger of the ingredient is not generally known, or, if
known, the ingredient is one that a consumer would not
reasonably expect to find in the [product];
4. That [name of defendant] knew or, by the use of scientific
knowledge available at the time, should have known of the
ingredient’s danger and presence;
5. That [name of defendant] failed to provide sufficient warnings
concerning the ingredient’s danger or presence;
6. That [name of plaintiff] was harmed; and
7. That the lack of sufficient warnings was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
A fuller definition of “scientific knowledge” may be appropriate in certain cases.
Such a definition would advise that the defendant did not adequately warn of a
potential risk, side effect, or allergic reaction that was “knowable in light of the
generally recognized and prevailing best scientific and medical knowledge
available,” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d
162, 920 P.2d 1347]), and knowable “ ‘by the application of reasonable, developed
human skill and foresight.’ ” (Livingston v. Marie Callenders Inc. (1999) 72
Cal.App.4th 830, 839 [85 Cal.Rptr.2d 528].)
Sources and Authority
• This instruction is based on the holding in Livingston v. Marie Callenders, Inc.
(1999) 72 Cal.App.4th 830, 838–839 [85 Cal.Rptr.2d 528], adopting
Restatement Second of Torts, section 402A, comment j, and Restatement Third
of Torts: Products Liability, section 2, comment k, in cases involving allergic
reactions.
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• “California has adopted the Restatement Second of Torts, section 402A,
comment j, application of strict tort liability failure to warn in the case of
allergies. Several Court of Appeal decisions in the context of allergic reactions
to nonfood products are consistent with or have expressly adopted comment j.”
(Livingston, supra, 72 Cal.App.4th at p. 838.)
• Restatement Second of Torts, section 402A, comment j, states: “In order to
prevent the product from being unreasonably dangerous, the seller may be
required to give directions or warning, on the container, as to its use. The seller
may reasonably assume that those with common allergies, as for example to
eggs or strawberries, will be aware of them, and he is not required to warn
against them. Where, however, 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, the seller is required to give
warning against it, if he 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. Likewise in the case of poisonous drugs, or those
unduly dangerous . . . .”
• “[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: the defendant’s product
contained ‘an ingredient to which a substantial number of the population are
allergic’; 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 know[n], of the presence of
the ingredient and the danger.’ ” (Livingston, supra, 72 Cal.App.4th at p. 839.)
• “The recently adopted Restatement Third of Torts: Products Liability, section 2,
comment k, . . . similarly states: ‘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.’ Further, the Restatement
Third of Torts: Products Liability, section 2, comment k notes: ‘The ingredient
that causes the allergic reaction must be one whose danger or whose presence
in the product is not generally known to consumers. . . . When the presence of
the allergenic ingredient would not be anticipated by a reasonable user or
consumer, warnings concerning its presence are required.’ ” (Livingston, supra,
72 Cal.App.4th at pp. 838–839)
• “[T]hose issues [noted in the Restatement] are for the trier of fact to
determine.” (Livingston, supra, 72 Cal.App.4th at p. 840.)
Livingston was a food product case; however there are several non-food product
cases that are consistent with or have also expressly adopted comment j. (See
McKinney v. Revlon, Inc. (1992) 2 Cal.App.4th 602, 607, 608 fn. 3 [3
Cal.Rptr.2d 72] [home hair-frosting product]; Oakes v. E.I. DuPont de Nemours
PRODUCTS LIABILITY CACI No. 1206
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& Co., Inc. (1969) 272 Cal.App.2d 645, 649 [77 Cal.Rptr. 709] [weed killer];
Harris v. Belton (1968) 258 Cal.App.2d 595, 608 [65 Cal.Rptr. 808] [skin tone
cream].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467–1479
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.165 (Matthew Bender)
CACI No. 1206 PRODUCTS LIABILITY
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