Products Liability Law Reporter

A New Jersey appellate court held that a trial court’s dismissal of claims arising out of injuries a restaurant patron allegedly suffered when she was sold excessively hot marinara sauce had been improper.

Martha Valdez and her husband ordered food from a pizzeria. Valdez’s husband picked up the order and handed her a bag containing marinara sauce in a cardboard cup with a lid. Valdez placed the items on her lap, and the couple drove off. Valdez later felt a burning sensation. She looked down, saw marinara sauce on her jeans, and felt the sauce burning her thigh. Upset, she then threw the whole bag out of the car window.

Valdez later went to a hospital, where she was treated for a second- and third-degree burn. She called the pizzeria to tell them that she had been burned by hot marinara sauce. Approximately six months later, an investigator purchased food from the pizzeria and discovered that the marinara sauce was 178.8-degrees Fahrenheit when sold.

Valdez and her husband sued Brooklyn’s Coal Burning Brick Oven Pizzeria, LLC, and its owners, alleging the defendants had negligently manufactured, marketed, assembled, inspected, packaged, and sold the marinara sauce, which led to Valdez’s injuries. The defense moved for summary judgment on the basis of spoliation of evidence. The defense argued that the plaintiffs had destroyed the most critical piece of evidence to their claim and that summary judgment was the only appropriate remedy. The trial court ruled that the plaintiffs’ discarding of the marinara sauce container prejudiced the defendants in that they would not be able to determine whether the plaintiffs had mishandled the container or whether the sauce had been mispackaged. Based on these factors, the trial court granted summary judgment for the defense. On appeal, the plaintiffs argued that the trial court had mistakenly viewed their claim as a negligent packaging claim and that summary judgment was not a proper remedy for spoliation of evidence.

Reversing in part, the appellate court noted that although parties are not obligated to preserve every item and document once a complaint is filed, they must do what is reasonable under the circumstances. Citing case law, the court added that the goal of sanctions for spoliation of evidence is to make the prejudiced party whole. Such remedies may include discovery sanctions, an adverse inference, or a separate cause of action for fraudulent concealment. Dismissal of the plaintiff’s cause of action will normally be ordered only when no lesser sanction will suffice.
The court held that the plaintiffs had a legal duty to preserve the marinara sauce container and other packaging. It was foreseeable that a lawsuit would arise after Valdez sustained a burn injury from prepared food, the court said, noting that the obligation to preserve evidence arises when litigation is probable, not when a plaintiff actually decides to bring suit. The failure to retrieve the sauce container impacts the plaintiffs’ ability to prove their claims and the defendants’ ability to defend against those claims, the court said.

Nevertheless, the court disagreed with the trial court’s conclusion that dismissal was the only appropriate sanction. The trial court should have taken a fact-sensitive approach and evaluated all available remedies, including suppressing evidence related to the marinara sauce container. The failure to do so, the court said, presumed that the plaintiffs could not present a viable claim without the missing evidence. The loss of the container did not prejudice the defendants’ ability to defend themselves against the claim that the marinara sauce was too hot when sold to the plaintiffs, the court concluded.

Consequently, the court remanded.

Citation: Valdez v. Brooklyn’s Coal Burning Brick Oven Pizzeria, LLC, 2021 WL 3354856 (N.J. Super. Ct. App. Div. Aug. 3, 2021).

Plaintiff counsel: Grace E. Robol and AAJ member Lisa A. Lehrer, both of Teaneck, N.J.