KATHLEEN NICHOLSON VS. BLOOMIN BRANDS, INC. (L-0432-15, SOMERSET COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3739-16T1
KATHLEEN NICHOLSON and
JOHN NICHOLSON, husband
and wife,
Plaintiffs-Appellants,
v.
BLOOMIN BRANDS, INC. and
OUTBACK STEAKHOUSE,
Defendants-Respondents.
______________________________
Argued June 7, 2018 – Decided July 30, 2018
Before Judges Haas, Rothstadt, and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No.
L-0432-15.
Chris H. Colabella argued the cause for
appellants (Gruber, Colabella, Liuzza &
Thompson, attorneys; Chris H. Colabella, of
counsel; Virginia D. Liotta, on the briefs).
Norman W. Briggs argued the cause for
respondents (Briggs Law Office, LLC,
attorneys; Norman W. Briggs, of counsel;
Adrienne Chapman, on the brief).
PER CURIAM
Plaintiff Kathleen Nicholson and her husband John Nicholson,
asserting a per quod claim, filed a six-count complaint against
defendants Bloomin Brands, Inc., Outback Steakhouse, and various
fictitious entities, when Kathleen1 became ill after dining at
defendant Outback Steakhouse (Outback). Alleging that her dinner
at Outback was the source of the Salmonella bacteria that caused
her illness, Kathleen asserted claims for negligence, breach of
the implied warranty of merchantability, N.J.S.A. 12A:2-314, and
violations of the New Jersey Food and Drug Act, N.J.S.A. 24:1-1
to 17-8, and the New Jersey Products Liability Act (NJPLA),
N.J.S.A. 2A:58C-1 to -11. After discovery concluded, the trial
court granted defendants' motion for summary judgment based on
plaintiffs' failure to establish causation. Plaintiffs appeal
from the March 20, 2017 memorializing order dismissing their
complaint with prejudice. We affirm.
We derive the following facts from evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motion, viewed in the light most favorable to plaintiff. Angland
v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
1
We refer to the Nicholsons by their first names to avoid any
confusion caused by their common surname. We intend no disrespect.
2 A-3739-16T1
On Sunday, April 7, 2013, at approximately 2:00 p.m., plaintiffs
dined at Outback with their daughter, her fiancé, her fiancé's
mother, and the mother's boyfriend. Kathleen consumed a Samuel
Adams beer, a non-seafood cream-based soup, mahi-mahi, shrimp,
scallops, and possibly a potato. No one else in her party ordered
or consumed those items, and she did not eat any appetizers or any
food from anyone else's plate. In the forty-eight hour period
prior to eating at Outback, Kathleen had only consumed a chocolate
donut on Friday night, chocolate chip cookies and saltine crackers
on Saturday night, and coffee with milk each morning, including
Sunday morning prior to arriving at Outback.2
Kathleen and her party left Outback at about 4:30 p.m., and
plaintiffs arrived home at about 6:30 p.m. Later that night, at
about 11:30 p.m., Kathleen became "very nauseous" and vomited
several times throughout the night. The next morning, Monday,
April 8, 2013, at about 10:00 a.m., Kathleen began to experience
diarrhea. From Tuesday, April 9, 2013, into Wednesday, April 10,
2013, Kathleen developed a slight fever and chills, while the
vomiting and diarrhea continued. Other than water and Pepto-
Bismol, Kathleen consumed nothing during this entire period.
2
At her deposition, Kathleen testified that on the two days
immediately preceding her visit to Outback, she had worked as a
hostess at Red Lobster from 11:00 a.m. to 9:00 p.m. each day, but
did not eat anything while at work.
3 A-3739-16T1
Initially, Kathleen believed she was suffering from a stomach
virus. However, when her symptoms worsened, she went to her doctor
on Thursday, April 11, 2013, and he promptly sent her to the
emergency room.
At the hospital, the responding physicians diagnosed Kathleen
with "gastroenteritis, severe dehydration, sepsis, renal
insufficiency[,] and cardiac (demand) ischemia."3 Blood tests
revealed Kathleen had Salmonella species Group D in her system.4
She was later diagnosed with "hypovolemic and septic shock
associated with severe colitis, sigmoid perforation, and acute
kidney injury." On April 16, 2013, she underwent a colostomy to
repair a perforation in her colon. She remained hospitalized
until April 25, 2013, when she was transferred to Troy Hill Center
for Rehabilitation, where she remained until May 9, 2013. On May
8, 2014, Kathleen underwent a reversal of her colostomy.
Plaintiffs filed suit against defendants on April 2, 2015.
To support their claim, they submitted expert reports prepared by
3
Medical records described Kathleen at the time in question as
a sixty-four year old heavy smoker with no significant past medical
history.
4
At her deposition, Kathleen testified that "[o]nce they said it
was [S]almonella poisoning, [she] linked it to [the Outback meal],
because that was the only thing [she] had to eat." However, she
acknowledged that none of her treating doctors told her that the
Outback meal was the source of the Salmonella, and none of the
other members of her party became ill after dining at Outback.
4 A-3739-16T1
George J. Zameska, Jr., M.S., R.S., C.F.S.P., and Dr. Richard
Snepar, M.D., F.A.C.P., as well as the experts' corresponding
deposition testimony. After reviewing the discovery, Zameska,
plaintiffs' liability expert, concluded that although at the time
of the incident, Outback "had current valid permits and was legally
operating" and there were no reported incidents of other patrons
becoming ill after eating at Outback, Outback had "failed to meet
legal requirements regarding having properly trained and certified
food personnel present and did not act responsibly and effectively
in its operation to manage foodborne disease risk factors to
protect [Kathleen] from exposure to sources of Salmonella
infection."
According to Zameska, "Salmonella infection is a foodborne
gastrointestinal illness that results from ingestion of enteric
pathogenic organisms, viruses or bacteria, which can live and
inhabit the intestinal tract of humans," resulting "in
inflammation or damage to the intestinal tract and generally can
cause reaction symptoms of vomiting and diarrhea." Zameska
reported that the Salmonella Group D organisms identified in
Kathleen's blood culture analysis included species that cause
"foodborne illness outbreaks . . . associated with poultry and
eggs." He did not indicate, however, that any food Kathleen ate
was a natural carrier of Salmonella.
5 A-3739-16T1
According to Zameska, the two most common ways to contract
foodborne Salmonella infections are from cross-contamination by
ingesting a food that was handled or touched by a person infected
with these organisms or by "[d]irect ingestion of a food that is
naturally contaminated with Salmonella [and] is not cooked, held,
or cooled properly, thus allowing this organism to survive or
grow." At his deposition, Zameska acknowledged he could not
identify a specific food as the cause of Kathleen's Salmonella
infection or an employee that caused the illness. Zameska also
admitted there was "only the possibility that an employee could
be a source of Salmonella in [Outback]," and there was "no specific
identified food handling practice" or direct evidence of a
sanitation or cleaning practice that caused Kathleen's illness.
He also agreed with defendants' expert, John J. Farmer, III,
Ph. D., that "[f]or 2013, the number of Salmonella infections with
no proven source/cause [was] probably greater than 99.9 percent."5
5
Zamesky explained that a "confirmed foodborne illness outbreak"
occurs when "the agent organism that caused the illness" is also
found "in the food[,] [a]nd for 99.9 percent of the cases, that
doesn't happen." Zamesky also acknowledged Dr. Farmer's reference
in his report to an April 2013 New Jersey Department of Health
(DOH) investigation that confirmed Kathleen's case of Salmonella
infection but concluded that the source of infection was unknown.
Relying on the DOH investigation, Dr. Farmer had opined that
Kathleen's Salmonella infection "was not caused by the food she
ate, or by any other exposure" at Outback but "could have been
caused by a contaminated food she handled or ate, or . . . by many
6 A-3739-16T1
Notably, Zameska also admitted that "[j]ust because someone says
they're sick does not necessarily mean that the last meal they
consumed is what made them sick."
Nonetheless, Zameska concluded it was likely that Kathleen
"was served food(s) that contained Salmonella organism
contaminates, especially from foods ordered that were not fully
processed to reduce pathogens to safe levels; or being served
foods cross-contaminated with Salmonella organisms by equipment,
utensils, or workers." To support his conclusion, Zameska cited
the absence of documentation6 demonstrating: (1) that Outback
managers and employees had received "training in regard to food
safety practices necessary to ensure the safe production of food";
(2) "that foods being offered for consumption [were] properly
treated to reduce pathogens to safe levels"; (3) the monitoring
of safety requirements for food preparation, production, and
handling; (4) compliance with "sanitation practices and procedures
to ensure establishment surfaces and equipment [were] free of
contamination"; (5) "[c]ompliance with ill employee exclusion and
restrictions"; and (6) the monitoring of food employees to ensure
different exposures that she had in the [sixteen]-day period before
her [symptoms] began."
6
At his deposition, Zameska testified that if shown the
appropriate documentation, he would modify his conclusions.
7 A-3739-16T1
that potential Salmonella carriers "follow[ed] established hygiene
and hand washing requirements." In addition, Zameska pointed to
the fact that the "[f]oods consumed by [Kathleen] were offered
with a consumer advisory," despite consumers not considering such
foods high risk and despite possibly violating New Jersey statutory
requirements for foods being served with a consumer advisory.7
Further, according to Zameska, Kathleen "was not known to be
exposed to or to have consumed food or beverage likely to be a
source of Salmonella infection prior to consumption of the Outback
Steakhouse meal," and "[t]he meal, the time-frame for the disease
symptoms to occur, and development and progression of the
subsequent illness [were] all consistent with ingestion of
Salmonella contaminated food at the Outback Steakhouse." Zameska
explained that Kathleen's "illness onset [was] consistent with
published onset times" for the infection, which vary from six to
seventy-two hours,8 with the ensuing illness lasting for four to
seven days. Additionally, Zameska noted that at sixty-four years
old, Kathleen's age "place[d] her [at] a higher risk for acquiring
7
See N.J.S.A. 24:1-1 to :21-53.
8
At his deposition, Zamesky testified the normal exposure
timeframe for the type of Salmonella infection contracted by
Kathleen was "probably more close to six to [forty-eight] hours"
as opposed to seventy-two hours.
8 A-3739-16T1
foodborne illness due to the potential of being in an immune-
compromised population group."
After reviewing Zameska's report, Kathleen's medical records,
and plaintiffs' deposition testimony, plaintiffs' medical expert,
Dr. Snepar, diagnosed Kathleen as suffering from "severe
Salmonella gastroenteritis" and concluded her "illness was
temporally related to her dining at [Outback]." Dr. Snepar noted
"[h]er eating habits prior to the onset of illness were austere
and of low risk for infection." Thus, he opined "with a reasonable
degree of medical certainty" that "[t]he meal, the symptom free
interval, and subsequent illness [were] all consistent with
ingestion of [Salmonella] contaminated food at [Outback]."
However, like Zameska, Dr. Snepar could not identify which food
product, employee, or food handling violation caused the
Salmonella infection in Kathleen.
After discovery ended, defendants moved for summary judgment,
or alternatively, to bar plaintiffs' experts' opinions at trial.
After oral argument, on March 20, 2017, the court issued a written
decision granting defendants' motion. Citing Koster v. Scotch
Assocs., 273 N.J. Super. 102, 105 (Law Div. 1993) and Cruz-Mendez
v. ISU/Ins. Servs. of San Francisco, 156 N.J. 556 (1999), the
court noted that "[w]hile a restaurant is strictly liable for
serving adulterated food," plaintiffs "must still establish
9 A-3739-16T1
causation." However, according to the court, plaintiffs "failed
to identify the source of illness or a procedure [d]efendants
breached." Instead, Kathleen stated "that no doctor had told her
the source of her illness," and "Zameska also agreed there was no
source of [S]almonella identified, or specific food handling
practice at Outback that caused the illness."
In rejecting plaintiffs' argument that temporal association
alone was sufficient to maintain her cause of action because the
connection between the causal event and the injury were
particularly strong, the court explained:
The case [p]laintiffs utilize for that
proposition, however, was one where the
defendant had been cited for health code
violations. Indeed, several unpublished cases
follow that same reasoning – where a defendant
had been cited for a health code violation,
temporal association of plaintiff's illness is
sufficient to defeat summary judgment. Such
violation has not been found in this matter.
. . . .
This [c]ourt recognizes the unique
difficulties [S]almonella poisoning
present[s] to plaintiffs, with regards to
causation and breach. However, plaintiffs
must be able to identify some fact beyond
temporal association which would allow a
rational fact-finder to find in plaintiff[s']
favor.
Having granted defendants' summary judgment motion, the court took
"no position as to [d]efendant[s'] request for [p]laintiffs'
10 A-3739-16T1
experts' reports to be barred." The court entered a memorializing
order on the same date, and this appeal followed.
On appeal, plaintiffs argue the court erred in granting
summary judgment to defendants because plaintiffs offered
sufficient proof to demonstrate a causal link between the Outback
meal and Kathleen's Salmonella infection, such that the matter
should have gone to the jury. We disagree.
We review a grant of summary judgment by applying the same
standard used by the trial court. Steinberg v. Sahara Sam's Oasis,
LLC, 226 N.J. 344, 366 (2016). That standard is well-settled.
[I]f the evidence of record—the pleadings,
depositions, answers to interrogatories, and
affidavits—"together with all legitimate
inferences therefrom favoring the non-moving
party, would require submission of the issue
to the trier of fact," then the trial court
must deny the motion. On the other hand, when
no genuine issue of material fact is at issue
and the moving party is entitled to a judgment
as a matter of law, summary judgment must be
granted.
[Ibid. (citations omitted) (quoting R. 4:46-
1(c)).]
Kathleen's claim under the NJPLA incorporates all her other
claims, as the NJPLA subsumes claims of product defect sounding
in negligence. Ford Motor Credit Co., LLC, v. Mendola, 427 N.J.
Super. 226, 240 (App. Div. 2012) ("[w]hether couched in terms of
negligence, strict liability, or breach of an implied warranty, a
11 A-3739-16T1
product liability cause of action is subject to [the NJPLA].").
Under the NJPLA, a product liability action is "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-1(b)(3). This
includes claims brought for harm caused by food cooked and sold
at restaurants. Gupta v. Asha Enters., L.L.C., 422 N.J. Super.
136, 145 (App. Div. 2011). Therefore, a restaurant is strictly
liable to its consumers under the NJPLA for serving adulterated
food. Koster, 273 N.J. Super. at 110-11.
To establish liability under the NJPLA, a plaintiff has the
burden of proving by a preponderance of the evidence that "the
product was defective, that the defect existed when the product
left the manufacturer's control, and that the defect proximately
caused injuries to the plaintiff, a reasonably foreseeable or
intended user." Boyle v. Ford Motor Co., 399 N.J. Super. 18, 34
(App. Div. 2008) (quoting Myrlak v. Port Auth. of N.Y. & N.J., 157
N.J. 84, 97 (1999)). The presence of Salmonella in food is a
defect, and a defendant is liable under the NJPLA if the presence
of Salmonella causes a consumer's illness. See, e.g., Koster, 273
N.J. Super. at 110-11 (holding defendant restaurant liable under
the NJPLA for serving food containing Salmonella); McGuinness v.
Wakefern Corp., 257 N.J. Super. 339, 341-42 (Law Div. 1991)
12 A-3739-16T1
(allowing plaintiffs to bring claim against suppliers of
ingredients of lasagna containing Salmonella).
However, "[e]ven in a strict-liability action, a plaintiff
must prove causation." Cruz-Mendez, 156 N.J. at 574. To establish
causation, a plaintiff must prove the defendant's act or omission
was both the factual and proximate cause of his or her injury.
Ibid. The defendant's act or omission is the factual cause of an
injury if, "but for the event, the [injury] probably would not
have happened." Ibid. Proximate cause is "any cause which in the
natural and continuous sequence, unbroken by an efficient
intervening cause, produces the [injury] and without which the
[injury] would not have occurred." Conklin v. Hannoch Weisman,
145 N.J. 395, 418 (1996).
"Generally, the determination of proximate cause is an issue
of fact for the [factfinder]." Cruz-Mendez, 156 N.J. at 576.
However, courts should not send a case to the jury if the nature
of the evidence would not allow them to determine the probable
cause of the plaintiff's injury without guess or speculation. See
Germann v. Matriss, 55 N.J. 193, 208-09 (1970) (finding error in
the trial court's decision to deny defendant judgment at the close
of the case where the evidence was "barren of any circumstances
on the basis of which a reasonable [person] could attribute any
13 A-3739-16T1
greater probative force" to any one of the proposed theories for
how plaintiff was exposed to a tetanus spore).
If the proof adduced at trial simply shows a
number of possible causes, only one of which
could be charged to the [defendant's] lack of
due care, for the presence of the factor which
eventuated in injury[,] the issue of the
[defendant's] responsibility cannot be
submitted to the jury for determination. To
do so would be to authorize a decision on the
basis of conjecture or speculation. It is
only when there are circumstances present from
which a reasonable [person] could find that
the [defendant's] want of due care was more
likely the probable cause that the issue of
liability must go to the jury for
determination.
[Id. at 208.]
Absent direct evidence of Salmonella contamination, courts
have accepted circumstantial evidence of causation, including
unsanitary conditions at the defendant restaurant and health code
violations. Koster, 273 N.J. Super. at 105. Courts have also
found a reasonable inference of causation where a plaintiff
provided evidence that other people who ate allegedly contaminated
food also became ill. See McGuinness, 257 N.J. Super. at 341-42.
Similarly, plaintiffs can prove causation by providing evidence
that all those who ate a certain food became ill, but the one
person who did not eat it was not affected. Lipari v. Nat'l
Grocery Co., 120 N.J.L. 97, 98-99 (1938); Griffin v. James Butler
Grocery Co., 108 N.J.L. 92, 93-94 (E & A 1931).
14 A-3739-16T1
Here, plaintiffs' proofs did not permit a reasonable
inference that defendants' acts or omissions were the probable
cause of Kathleen's illness, and, like the trial court, we are
satisfied that granting defendants' summary judgment motion was
appropriate. We reject plaintiffs' argument that the court
erroneously required them to prove causation "by direct evidence
of the source alone," a "requirement [that] is not present in the
prevailing case law." On the contrary, the court expressly noted
that temporal association combined with circumstantial evidence
such as known health code violations, none of which was present
in this case, would have been sufficient to withstand summary
judgment.
Indeed, other than temporal association, plaintiffs presented
no evidence that anyone else in their party or that anyone else
who ate at Outback that day became ill. Plaintiffs also failed
to eliminate other possible sources of contamination. In the
seventy-two hours before she became ill, Kathleen worked two shifts
at another restaurant. Although, in her capacity as a hostess,
she did not prepare or touch food, plaintiffs' experts did not
negate the possibility of cross-contamination at that restaurant.
We also reject plaintiffs' contention that the trial court
failed to properly consider their experts' opinions, particularly
their liability expert, to find the requisite circumstantial
15 A-3739-16T1
evidence. On the contrary, the court explained that Zameska could
not identify the source of the Salmonella or a "specific food
handling practice at Outback that caused [Kathleen's] illness."
Further, the court expressly referenced Zameska's deposition
testimony that "[j]ust because someone says they're sick does not
necessarily mean that the last meal they consumed is what made
them sick."
Moreover, Zameska failed to analyze and expressly rule out
the other foods Kathleen consumed during the incubation period to
eliminate other potential sources of Salmonella. He relied on the
absence of documentation, rather than the presence of violations,
to support his conclusions regarding Outback's training and
monitoring of employees as well as their production, preparation,
and handling of food, food surfaces, and equipment. Further, as
noted by the trial court, he could not identify the specific
Outback food, employee, sanitation or cleaning practice that
caused Kathleen's Salmonella infection and indicated that the
foods she consumed at Outback were not commonly associated with
Salmonella. Under these circumstances, plaintiffs did not raise
a genuine issue of material fact, and a factfinder could only
guess or speculate that the Outback meal was the proximate cause
of Kathleen's Salmonella infection. See Germann, 55 N.J. at 208-
09.
16 A-3739-16T1
Affirmed.
17 A-3739-16T1