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Plaintiff’s Burn Claim from Hot Marinara Sauce Not Barred Due to Disposal of Marinara Sauce Container

By on September 3, 2021 in Negligence with 0 Comments

Plaintiff Martha Valdez ordered pizza and mozzarella sticks from the defendant Brooklyn’s Coal Burning Brick Oven Pizzeria.  After purchasing the food, she returned to her car with her husband and he gave her the bag containing the mozzarella sticks and marinara sauce and she put the bag on her lap.  After driving to the home of a relative to drop off water bottles for a party, plaintiff “felt the burn” and looked down to see marinara sauce on her jeans.  Feeling the sauce burning her thigh, she threw the whole bag with the mozzarella sticks and the sauce out the window.  The issue in Valdez v. Brooklyn’s Coal Burning Brick Oven Pizzeria, LLC, 2021 N.J. Super. Unpub. LEXIS 1646 (App. Div. August 3, 2021) was whether her burn claim against the defendants was barred based upon a spoliation of evidence claim in discarding the marinara sauce container.  

After the plaintiff threw the bag with the mozzarella sticks and sauce out the window, she told her husband to go home.  They went home without recovering the bag.   When the plaintiff arrived home, she removed her jeans, took a photo of her burn and went to the hospital.  Before going to the hospital, she called the Pizzeria and reported that she had been burned by the hot marinara sauce.  According to her medical expert, the plaintiff suffered a deep second degree burn with a small element of a third degree burn with a resulting hyperpigmented permanent scar. 

About six months later, an investigator for plaintiffs (Martha and her husband Jose Valdez) made a purchase of mozzarella sticks and marinara from the defendant’s pizzeria.  Testing of the sample cup of marinara sauce revealed a temperature of 178.8 degrees Fahrenheit.  According to the plaintiff’s expert, a hot liquid at 160 degrees Fahrenheit contacting human adult skin would cause a second or third degree burn.

Thereafter, plaintiffs Martha and Jose Valdez filed a lawsuit against the defendants Brooklyn’s Coal Burning Oven Pizzeria, LLC, John Grimaldi, and Julie Grimaldi Realty Group, LLC, alleging that plaintiff had suffered severe personal injuries because of the defendants’ “careless, reckless, and/or negligent, manufacturing, marketing, assembling, inspection, packaging, and/or sale of the marinara sauce.”

The defendants filed a motion to dismiss based upon spoliation of evidence.  The defendants asserted that plaintiff “spoliated and destroyed not only the most critical, but the only piece of evidence . . . essential to proceeding with her claim.”  The trial court determined that the discarding of the marinara sauce container prejudiced defendants in their ability to defend the action.  The defendants could not determine if the containers was mishandled by plaintiff or assess comparative fault of plaintiff.  She did not produce the jeans that she was wearing on the day of the spill, or the photograph of same.

Without either the container of sauce or the jeans, there was no way of determining if the sauce was mispackaged or plaintiff’s own negligence contributed to the injury.  The trial court found that discovery sanctions would not contribute to the plaintiff being able to prove her claim, would not provide any avenue for the defendants to defend themselves and granted summary judgment to the defendants.

This appeal ensued.  The plaintiffs argued that the trial court mistakenly viewed the claim that the sauce was too hot as a negligent packaging claim.  The plaintiffs further argued that because the trial court misinterpreted her claim, summary judgment was not a proper remedy for the alleged spoliation of evidence.

The Appellate Division noted that a spoliation claim “arises when a party in a civil action has hidden, destroyed, or lost relevant evidence and thereby impaired another party’s ability to prosecute or defend the action.”  Further, the Court noted that “[w]hen litigation is likely, a prospective party aware of that probability has an obligation to preserve evidence foreseeably important to its adversary.”

The Appellate Division also noted that trial courts have broad authority to sanction “abusive discovery tactics.”  A reviewing court would not disturb the sanctions if they are just and reasonable under the circumstances.  The Appellate Division stated that remedies for spoliation of evidence “include use of discovery sanctions, an adverse inference, or a separate cause of action for fraudulent concealment.”  Further, the Appellate Division noted that dismissal of a claim would normally be ordered only when there was no lesser sanction that would suffice to erase the prejudice suffered by the non-delinquent party.

The Appellate Division agreed with the trial court that the plaintiff did have a legal duty to preserve the marinara sauce container and other packaging.  The Court also agreed that it was foreseeable that a customer would bring suit after suffering a burn from a prepared food, especially if the burn required treatment at a hospital.  Further, the obligation to preserve evidence arises when litigation is probable, not when a defendant decides to bring suit. 

The Court found that the failure to retrieve the container likely impacted both plaintiffs’ ability to prove their claim and defendants’ ability to prove that they were not negligent with regard to their packaging of the sauce.  However, the Appellate Division disagreed with the determination that the appropriate sanction was dismissal of the plaintiffs’ claim.  The Court found that less severe sanctions, including the suppression of evidence relating to the marinara sauce container could effectively address the spoliation in this case.   The loss of the marinara sauce container could be remedied by precluding plaintiffs from presenting any evidence or claim that the container caused plaintiff’s injury. 

But, the defendants were not irreparably prejudiced from their ability to defend themselves against the claim that the marinara sauce was too hot when sold. The Court noted that the plaintiffs had submitted evidence that the temperature of a sample of the marinara sauce which was obtained six months after the burn was 178.8 degrees Fahrenheit and further that a medical expert opined that a liquid at 160 degrees Fahrenheit causes second degree burns when contacting adult skin.

Thus, the Appellate Division reversed the dismissal of the plaintiffs’ complaint and remanded the case back to the trial court.  On remand, the trial court was directed to consider the dismissal of the negligent packaging claim as a sanction for the spoliation of the marinara sauce cup and bag.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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