The facts in this action apparently present a case of first impression in the state of New Jersey. On February 5, 1990, John McGuinness, Linda McGuinness, Darrin Gottko and Bridget McGuinness, members of the McGuinness Family, all ate a lasagna dish prepared by Linda McGuinness. On February 6, 1990, each member of the family began experiencing symptoms of severe nausea, vomiting, fever, diarrhea and general malaise. Thereafter, the family was treated for salmonella type "D" food poisoning with John McGuinness and Bridget McGuinness requiring hospitalization. The plaintiff family alleges the lasagna was the cause of the poisoning. This was supported by the treating physician in his affidavit.
The ingredients used in the preparation of the lasagna, all purchased from the Wakefern Corp., d/b/a, Shoprite Supermarkets (herein "Shoprite") were as follows: skim ricotta cheese and lasagna noodles supplied by Shoprite, eggs supplied by Colonial Foods (herein "Colonial"), mozzarella cheese supplied by Sorrento Cheese Co. (herein "Sorrento") and Prego Sauce supplied by Campbell Soup Co. (herein "Campbell").
The plaintiffs have brought this action in products liability and negligence against the suppliers of the ingredients and the supermarket where they were purchased.
This action comes before the court on a motion for summary judgment brought by defendants Campbell and Sorrento with the defendant Colonial joining in the motion. Defendant Shoprite opposes the motion of the co-defendants. The defendants contend that the plaintiffs have failed to present a prima facie case and that the plaintiffs' claim is not sustainable under any available theory of tort liability. In Griffin v. James Butler Grocery Co., 108 N.J.L. 92, 156 A. 636 (1931), plaintiff purchased canned peaches at a grocery store which were eaten by her and all of the members of her family except her son. All the persons who had eaten the peaches got violently ill. The son who did not eat them did not become ill. The Court in its holding stated:
"The inferences . . . that the party were poisoned by bad food, and that such bad food could have been none other than the peaches, were legitimate if not indeed necessary; and hence, there was a clear case for the jury on the facts." Griffin, supra at 94, 156 A. 636.
In Lipari v. National Grocery Co., 120 N.J.L. 97, 198 A. 393 (1938), the court relied on the holding in Griffin. The plaintiff bought a can of tuna fish from the defendant grocery store. The tuna fish was used along with other foods for the evening meal. All who ate the fish later suffered from food poisoning. The court following Griffin considered the proofs sufficient to raise a jury question as to whether the sickness of the several plaintiffs was caused by the fish. That the lasagna caused the sickness in the case at bar is a permissible inference in light of the holdings in Griffin and Lipari. That the sickness was caused by one of the ingredients in the lasagna would logically also be a permissible inference sufficient to raise a jury question making the plaintiffs' prima facie case.
The defendants' second contention is that no applicable theory of tort liability supports the plaintiffs' position.
Under a concert of action theory, the defendants must intentionally unite in the wrongful act, be present and assist or participate therein actively and with common interest so that the injury results from the joint wrongful act of the wrongdoers.
American Law of Torts, § 3:2 at 377. The plaintiffs do not allege that the defendants united or acted with a common intent to supply deleterious foodstuffs nor would the ...