The plaintiffs in Gupta v. Asha Enterprises, L.L.C., ___ N.J. Super. ___ (App. Div. 2011), were sixteen Hindu vegetarians. Two of the plaintiffs ordered vegetarian samosas (a fried or baked stuffed pastry) from defendant Asha Enterprises (“Moghul Express”), an Indian restaurant. However, defendant filled the order with meat-filled samosas, which the plaintiffs ate. The plaintiffs sued defendant, asserting negligence, negligent infliction of emotional distress, consumer fraud, product liability, and express and implied warranty claims against the defendant.
In their complaint, the plaintiffs outlined their injuries and damages in the following manner: “‘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.’” The trial court dismissed the plaintiffs’ claims. The Appellate Division affirmed as to the dismissal of all of the claims with the exception of the plaintiffs’ express warranty claims.
On August 10, 2009, two of the plaintiffs placed an order for vegetarian samosas with Moghul Express. In placing the order, those plaintiffs explained to the Moghul Express employee that they needed vegetarian samosas because they were going to be given to a group of strict vegetarians. The employee assured them that was not a problem because the restaurant did not make meat samosas. Thirty minutes later the plaintiffs picked up their order and were given a tray that was labeled “VEG samosas.” At that time they were again told that they were receiving vegetarian samosas.
Upon eating some of the samosas, the plaintiffs started to worry that they contained meat. They contacted Moghul Express confirm the content of the samosas and were again told that the restaurant did not make meat samosas. The plaintiffs then continued to eat the snacks but later decided to return them to the restaurant. At the restaurant, an employee told the plaintiffs that the snacks contained meat.
In opposing the defendant’s motion to dismiss, the plaintiffs provided the trial court with a copy of the defendant’s menu that separately listed vegetarian and non-vegetarian appetizers; there was a listing for vegetarian samosas but not for meat samosas. The defendant submitted a certification from one of its partners that stated that at approximately the same time that the plaintiffs placed their order, the restaurant received an order for meat samosas. Apparently, the orders were switched and the plaintiffs received the meat samosas. The other customer realized the mix-up and returned the order to the restaurant. Upon realizing that the mix-up had occurred, the defendant made up an order of vegetarian samosas and delivered it to plaintiffs, who accepted it without payment.
With respect to the plaintiffs’ product liability claims, the Appellate Division explained that the New Jersey Products Liability Act (“PLA”) created one unified, statutory theory of recovery for harm caused by a product that subsumed all possible causes of action relating to harms caused by a product. Although recognizing that the PLA applied to food cooked and sold by restaurants, the Appellate Division concluded that “the PLA is inapplicable as grounds for recovery in the present case because plaintiffs’ claims are not related to a defect in the samosas themselves, which were safe, edible and fit for human consumption, but rather to allegations they were supplied the wrong product.” Accordingly, the Appellate Division affirmed the trial court’s grant of summary judgment on the plaintiffs’ product liability claims and implied warranty claims (which were subsumed by the PLA).
For their Consumer Fraud Act (“CFA”) claims, the plaintiffs alleged that the defendant violated the CFA by “‘fraudulently and/or deceptively advertising the sale of vegetarian food to the Plaintiff and instead, provid[ed] Plaintiffs with non-vegetarian food containing meat products.’” The Appellate Division reviewed the relevant provisions of the CFA, including those involving misrepresentation of the identity of food, N.J.S.A. 56:8-2.10, and the elements for such a claim: 1) unlawful conduct by the defendant; 2) ascertainable loss by the plaintiff; and 3) a causal relationship between the conduct and loss. The court found that the plaintiffs could establish misrepresentation by the defendant to satisfy the first element, but that they could not prove ascertainable loss.
In that regard, the CFA requires that the plaintiff prove a “loss of moneys or property[,]” and the court determined that the plaintiffs could not meet that burden. Although the plaintiffs argued that they could because they were seeking damages in the amount it would cost to travel to India for a purification ritual, the court disagreed, noting that “what they are seeking is the cost of cure for an alleged spiritual injury that cannot be categorized as either a loss of moneys or property.” Stressing that there was no supporting precedent for the plaintiffs’ claims, the Appellate Division refused to expand the definition of ascertainable loss and affirmed the dismissal of the plaintiffs’ CFA claims.
The court then reviewed the plaintiffs’ two negligence claims – negligence leading to spiritual injury and negligence infliction of emotional distress – together. As to the latter claim, the court emphasized that such a claim had only been recognized in limited circumstances. After reviewing relevant precedent, the court concluded that “[e]ven if we were to find plaintiffs’ negligence claims cognizable, they have offered no proof in connection with Moghul Express’s motion for summary judgment that would satisfy the relevant damages standard, despite the fact that such proof, if it exists, lies within their control and does not require the opportunity to conduct discovery.”
Finally, the Appellate Division examined the plaintiffs’ breach of express warranty claims, which were controlled by the Uniform Commercial Code. First, the court determined that the plaintiffs had establish sufficient evidence to demonstrate a warranty by the defendant that the samosas it provided were vegetarian. However, “[a] more difficult issue” was posed by the plaintiffs’ claims of consequential damages, i.e., emotional/spiritual injury requiring purification of their souls in India. The Appellate Division noted that to prevail, the plaintiffs had to prove that those damages were reasonably foreseeable. Ultimately, the Appellate Division reasoned that “[b]ecause discovery has not commenced in this matter, we cannot determine what consequential damages were foreseen at the time of the sale of the samosas in the event of a breach. We thus reverse summary judgment on plaintiffs’ breach of express warranty claim and remand for further proceedings.”