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Koster v. Scotch Associates12/3/1993
MENZA, J.S.C.
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 . . .
Discussion
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).
The UCC
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 palata
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