Tuesday, August 09, 2011

Required ritual purification not cognizable damages for consumer fraud purposes

Gupta v. Asha Enterprises, L.L.C., --- A.3d ----, 2011 WL 2749630 (N.J. Super. 2011)

Plaintiffs are 16 Hindu vegetarians who sued for negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties when defendant, an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosas after being specifically advised that the order was for strict vegetarians. Defendant’s employee allegedly responded that there was no problem because it didn’t make any meat samosas. Defendant’s menu had separate listings for vegetarian and non-vegetarian items, and samosas only appeared on the vegetarian listing. The tray plaintiffs received was marked “VEG samosas” and defendant’s employee reiterated that they were vegetarian. After plaintiffs started eating, some of them worried, called the restaurant again, and were reassured that the samosas were vegetarian. Eventually they returned to the restaurant, at which point an employee confirmed that there was meat in the food.

Plaintiffs alleged “spiritual injuries” resulting in damages. As plaintiffs explained:

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.

Defendants offered a certification that the restaurant received an order for meat samosas at approximately the same time and mixed up the two orders. When the other customer realized the error, defendants prepared another order of vegetable samosas and delivered it to one of the plaintiffs, who accepted them.

The trial court dismissed the claims; the appellate court affirmed and reversed in part. The NJ statute covering product liability subsumes claims for a defective product under the Consumer Fraud Act and for negligence and breach of implied warranty. Thus, the court affirmed the dismissal of those claims based on product defect. However, the product liability law wasn’t available here because the claims weren’t related to a defect in the samosas themselves, “which were safe, edible and fit for human consumption,” but to a claim based on the supply of the wrong product.

Consumer Fraud Act claim for fraudulently/deceptively advertising the sale of vegetarian food: Under the CFA, unlawful conduct can consist of an affirmative misrepresentation, even in the absence of knowing falsity or intent to deceive, as long as it’s a material statement of fact made to induce purchase. The CFA also specifically covers food. Plaintiffs pled sufficient facts to establish an unlawful practice.

However, there was no evidence of ascertainable loss. After realizing its mistake, the restaurant gave them conforming samosas without extra payment. The cost of a trip to India for a purification ritual was an “alleged spiritual injury that cannot be categorized as either a loss of moneys or property.” Another case said in dictum that projected costs of repair for improperly installed equipment was an ascertainable loss, but that was the loss of the value of property that had been rendered unsafe and unsightly by the defendant’s contractor. Here, there was no underlying loss of the value of property. Extending the CFA to cover this type of non-economic loss would be improper.

What about negligence/negligent infliction of emotional distress? Foreseeability, while not sufficient, is crucial to determine whether an alleged tortfeasor was subject to any duty to the injured party. Here, liability should depend on the defendant’s foreseeing emotional harm severe enough to cause substantial injury to a normal person. Foreseeability is particularly important for negligent infliction of emotional harm, to deal with concerns over the genuineness of an injury that is only emotional and not phsysical. There must be a special likelihood of “genuine and serious mental distress, arising from special circumstances,” to guarantee that the claim isn’t spurious (citing Prosser & Keeton).

Once foreseeability is established, the court must consider whether fairness and policy concerns justify imposing a duty on the defendant. New Jersey has recognized the tort of negligent infliction of emotional distress only when the defendant’s conduct placed the plaintiff in a reasonable fear of immediate personal injury (causing emotional distress leading to physical injury), or when the defendant’s conduct caused death or serious bodily injury to a bystander’s intimate relative (causing severe mental or emotional harm). The plaintiffs’ claim here didn’t fit into those categories. Even if the negligence claims were cognizable, plaintiffs offered no proof that they’d satisfy the relevant damages standard.

Plaintiffs’ claim for breach of express warranty of fitness, however, were cognizable. Such claims require only injury “proximately” resulting from any breach of warranty. Emotional distress damages are recoverable, even if they are difficult to calculate. As for costs of purification, the plaintiffs would have to establish that such damages were reasonably foreseeable at the time the contract was entered into. Without discovery, the court of appeals couldn’t determine what consequential damages would have been foreseen at the time of sale. Thus, the court remanded for further proceedings, noting that it seemed that resolution of the issues wouldn’t implicate religious doctrine and could be done using neutral principles, but that the trial court could consider this issue further if warranted.

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