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Durgesh Gupta, Anubhuti Gupta, Sujata Gupta, Rakesh Kamrai v. Asha Enterprises

July 18, 2011

DURGESH GUPTA, ANUBHUTI GUPTA, SUJATA GUPTA, RAKESH KAMRAI, SACHIN GARG, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF PANKHURI GARG, POONAM GARG, SANJEEV AGARWALLA, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF SHREYA AGARWALLA, SEEMA AGARWALLA, SHARAD AGARWAL, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF PRIYA AGARWAL, SHASHI AGARWAL, NITIN AGARWAL, AJAY PRASAD AND RANJANA PRASAD, PLAINTIFFS-APPELLANTS,
v.
ASHA ENTERPRISES, L.L.C. D/B/A MOGHUL EXPRESS & CATERING, CO., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9681-09.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 22, 2011

Before Judges Wefing, Payne and Hayden.

The opinion of the court was delivered by PAYNE, J.A.D.

Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosas*fn1 causing spiritual injuries resulting in damages. Plaintiffs explain their injuries and damages as follows:

Hindu vegetarians believe that if they eat meat, they become involved in the sinful cycle of inflicting pain, injury and death on God's creatures, and that it affects the karma and dharma, or purity of the soul. Hindu scriptures teach that the souls of those who eat meat can never go to God after death, which is the ultimate goal for Hindus. The Hindu religion does not excuse accidental consumption of meat products. One who commits the religious violation of eating meat, knowingly or unknowingly, is required to participate in a religious ceremony at a site located along the Ganges River in Haridwar, Uttranchal, India, to purify himself. The damages sought by plaintiffs included compensation for the emotional distress they suffered, as well as economic damages they would incur by virtue of having to participate in the required religious cleansing ceremony in India.

On appeal, plaintiffs argue that Moghul Express's motion for summary judgment was prematurely decided before discovery had commenced and that the motion judge legally erred in her decision dismissing each of plaintiffs' causes of action. We affirm in part and reverse in part.

I.

Viewed most favorably to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Rule 4:46-2(c), the motion record discloses the following. According to the certification of plaintiff Durgesh Gupta, filed in opposition to summary judgment, on August 10, 2009, he and plaintiff Sharad Agarwal placed an order for vegetarian samosas at Moghul Express, a restaurant located in Edison, New Jersey. At the time that the order was placed, Gupta and Agarwal advised Mogul Express's employee that they required vegetarian samosas, because they were being purchased for a group of individuals who were strict vegetarians. The two men were informed that they should not be concerned because the restaurant did not make meat-filled samosas. One-half hour later, the men returned to the restaurant to pick up their order and were handed a tray that had written on its top "VEG samosas," and they were again assured of the vegetarian nature of the food.*fn2

After plaintiffs had consumed some of the samosas, some plaintiffs became concerned that the samosas might contain meat. They called Moghul Express to verify the food's content, and they were again assured that Moghul did not make meat-filled samosas. Although the plaintiffs continued eating for a time, eventually they determined to return the remaining samosas to Moghul Express to verify their content. Once there, Moghul Express's employee advised them that the samosas, indeed, contained meat. As a consequence of eating the meat-filled samosas, plaintiffs were spiritually injured.

In addition to the certification, the plaintiffs offered a copy of a Moghul Express menu that separately listed appetizers as "Vegetarian" and as "Non-Vegetarian." Chinese appetizers were similarly labeled as "(Veg.)" and "(Non-Veg.)," and the menu contained a separate category labeled "Vegetable Entrie." A listing for "Vegetable Samosa" appeared among the vegetarian appetizers; no listing for meat samosa was present among the non-vegetarian appetizers. Plaintiffs also offered an e-mail from the Director of the Edison Division of Health Food Services to plaintiff, Sachin Garg, stating that he had verified that Moghul Express maintained separate cooking facilities and utensils for vegetarian and non-vegetarian food items.

The record also contains the certification of Kamal Arora, a partner in defendant Asha Enterprises L.L.C. He stated that, on the day in question, Moghul Express received, at approximately the same time, the order by Sharad Agarwal for vegetable samosas and an order from another customer for meat samosas. As directed, thirty minutes later, Agarwal picked up his order, followed by the other customer. However, the other customer decided to eat one of the samosas in his car, realized that he had been given a tray of vegetable samosas, and returned the order to Moghul Express. Upon determining that the two orders had been mixed up, Moghul Express prepared another order of vegetable samosas and delivered it to Agarwal, who accepted it without payment.

Plaintiffs do not dispute the acceptance of the second order of samosas, the fact that they were vegetable-filled, and that no payment for them was made.

When presented with this evidence, the motion judge converted what initially had been a motion to dismiss the complaint for failure to state a claim pursuant to Rule 4:6-2(e) into a motion for summary judgment pursuant to Rule 4:46-2(c), determined that further discovery was not necessary to her decision, and granted the motion. This appeal followed.

II.

In deciding this appeal, we employ the same standard applicable to the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We focus first on plaintiffs' claims based on products liability. The New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, provides:

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner. [N.J.S.A. 2A:58C-2.]

The Supreme Court has explained that "'[w]ith passage of the Product Liability Act, . . . there came to be one unified, statutorily defined theory of recovery for harm caused by a product, and that theory is, for the most part, identical to strict liability.'" In re Lead Paint, 191 N.J. 405, 436 (2007) (quoting William A. Dreier, et al., New Jersey Products Liability & Tort Law, § 1:2-1 (2007)). "The language chosen by the Legislature in enacting the PLA is both expansive and inclusive, encompassing virtually all possible causes of action relating to harms caused by consumer and other products. See N.J.S.A. 2A:58C-1b(3) (defining "product liability action")." Id. at 436-37. Indeed, the definition to which the Court referred provides: "'Product liability action' means any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty." N.J.S.A. 2A:58C-1b(3).

Thus, the Court has held that the PLA subsumes claims for a defective product under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and that Act cannot provide an alternative remedy for injury. Sinclair v. Merck & Co., Inc., 195 N.J. 51, 54 (2008). It similarly subsumes claims of defect sounding in negligence and breach of implied warranty. Koruba v. Am. Honda Motor Co., Inc., 396 N.J. Super. 517, 531 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008). On this basis, we affirm the dismissal of the counts of plaintiffs' complaint alleging negligence, violations of the CFA and breach of implied warranty insofar as they are ...


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