Decided: December 3, 1993.
ARNOLD KOSTER, LENORE KOSTER, AMANDA KOSTER AND MARCIE RABIN, PLAINTIFFS,
SCOTCH ASSOCIATES, CHARLIE O'S, ET. ALS., DEFENDANTS. RICHARD REISS AND DEBORAH REISS, PLAINTIFFS, V. SCOTCH ASSOCIATES AND/OR CHARLIE O'S, INC., ET. ALS., DEFENDANTS. STANLEY ELLIOTT AND MYRTLE ELLIOTT, PLAINTIFFS, V. WILLIAM P. MCCORMICK AND CHARLIE O'S, INC., A NEW JERSEY CORPORATION, DEFENDANTS. DWAYNE WARREN, TODD WARREN, MANUEL KREUGER, LILLIAN KREUGER, TERI KREUGER, HARRISE KREUGER AND IRA LEVINSTON, PLAINTIFFS, V. SCOTCH ASSOCIATES, CHARLIE O'S, INC. AND WILLIAM MCCORMICK T/A SMUGGLER'S COVE AND FRANK GARGUILO AND SONS, DEFENDANTS. PAULETTE FERGUSON, MICHAEL FERGUSON AND MARIA FERGUSON, PLAINTIFFS, V. SCOTCH ASSOCIATES AND/OR CHARLIE O'S, INC. T/A AND/OR SMUGGLER'S COVE, DEFENDANTS. STANLEY MARKO, PLAINTIFF, V. SMUGGLER'S COVE, INC., JOHN DOE, INC., SCOTTY MCCORMICK T/A SMUGGLER'S COVE, ET. ALS., DEFENDANTS. AND CHARLIE O'S, INC., AND WILLIAM MCCORMICK, DEFENDANTS/THIRD-PARTY PLAINTIFFS, V. FRANK GARGUILO AND FRANK GARGUILO & SON, THIRD PARTY DEFENDANTS. OREST PELECHATY AND SUSAN VELICOFF, HIS WIFE, PLAINTIFFS, V. SCOTCH ASSOCIATES, AND CHARLIE O'S, INC. T/A SMUGGLER'S COVE, ET. ALS., DEFENDANTS/THIRD-PARTY PLAINTIFFS, V. FRANK GARGUILO AND FRANK GARGUILO & SONS, THIRD-PARTY DEFENDANTS.
Plaintiffs move for summary judgment. The question presented in this case is whether a restaurant is strictly liable for serving adulterated food. This precise issue has not been decided in New Jersey.
All of the plaintiffs suffered food poisoning from salmonella enteritidis (hereinafter salmonella) after having dined at the defendant's restaurant on five separate days in May 1990. The plaintiffs were all served different foods and there is no direct evidence that any particular food was the cause of the food poisoning. There is some indication, however, that the raw eggs in the caesar salad may have been the source of the salmonella.
The plaintiffs contend that the defendant is strictly liable. The defendant responds that principles of strict liability are inapplicable to food served in a restaurant. It also argues that it cannot be liable to the plaintiffs for the harm caused to them because the source of the salmonella was the raw eggs which had been purchased from the third-party defendant and which the restaurant was unable to detect.
The New Jersey Department of Health conducted an investigation of the incident. The relevant portions of the report of that investigation states:
Food questionnaires implicated Caesar salad as a vehicle of transmission. Salmonella enteritidis was recovered from stool specimens submitted by 25 restaurant patrons and 10 employees. The leftover raw eggs were tested and found negative for Salmonella enteritidis. . .
Three dozen eggs leftover from the shipment of four cases of eggs received by the restaurant on May 9th were submitted to the State Laboratory and were found negative for salmonellae . . .
The investigation of the food handling practices revealed that the food handlers were not familiar with good food handling practices . . .
Food handlers did not practice proper personal hygiene . . .
In this outbreak the epidemic curve suggests a common source outbreak.
The incubation period, the clinical symptoms and the duration of the symptoms are consistent with salmonellosis. Isolation of S.e. from patrons' and food handlers' stools provide supportive evidence of this Conclusion. The precise way in which S.e. was introduced into the restaurant, whether by person or food, could not be determined. The fact that food-specific attack rates implicated only one food, Caesar salad, as the vehicle of infection, and the other confirmed cases of S.e. were associated with other foods consumed at different days, not statistically significant, suggests that a cross contamination may also have occurred . . .
There are three basic reasons for concluding that the defendant restaurant is strictly liable to the plaintiff: the Uniform Commercial Code (UCC), N.J.S.A. 12A-2.314; the Adulterated Food Statute, N.J.S.A. 24:5-1 to -15; and the Products Liability Statute, N.J.S.A. 2A:51-C-1(3).
In 1927, New Jersey's highest court decided that food served in a restaurant constituted a service rather than a sale and that therefore the warranty of merchantability and fitness for use did not apply. In Nisky v. Childs Co., 103 N.J.L. 464, 467, 135 A. 805 (E. & A. 1927), the Court stated:
A customer at an eating place seeks not to make a purchase, but to be served with food to such reasonable extent as his present needs require. With the service goes a place, more or less attractive, in which to eat it, a table, dishes, linen, silver, waiters and sometimes music as accompaniment--all tending to render more agreeable and palatable that which he eats.
The view expressed in Nisky was a minority one. The majority took the position that the furnishing of food at a restaurant constituted a sale and that therefore the implied warranty of merchantability applied. The minority view was severely criticized by legal authorities:
The Connecticut-New Jersey rule has been severely criticized as not only being unrealistic and not in harmony with modern business conditions and methods of serving food, but as being based to some extent upon "a humane solicitude for the plight of that legendary person, the poor boardinghouse keeper, who might be financially ruined by the fortuitous appearance in food furnished a patron of matter in which the processes of decay have gone too far, or of some alien substance such as broken glass, or a shell, a pebble, a splinter of wood, or a button," as bringing about an inconsistency and incongruity in the law so that "if one is poisoned by bad food which he takes out of the restaurant, he may recover because he may rely upon the implied assurance that it is fit to eat, but, if he is poisoned by bad food that he buys in a cafeteria and carries to a table himself in dishes which he has in part selected, it is not a sale and he may be poisoned with impunity. [V. Woerner, Annotation, Implied Warranty of Fitness by One serving food, 7 A.L.R. 2d 1021, 1030.]
The Nisky case remained good law until 1963, when the Uniform Commercial Code's implied warranty of merchantability provision was ...
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