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Marinara Sauce Too Hot to Handle? (NJ)

August 5, 2021

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<p style="text-align: justify;">Pizza, Spaghetti, and Mozzarella Sticks.  What these three commonly enjoyed food items have in common is that they are regularly eaten with tomato or marinara sauce.  The flavor combination of flour, wheat, bread, cheese, and tomato sauce is something that virtually everyone enjoys. But what happens when the sauce is capable of inflicting second or third degree burns?</p>
<p style="text-align: justify;">The matter of <em><a href="">Valdez v. Brooklyn’s Coal Burning Brick Oven Pizzeria</a> </em>is a case that involves this very issue.  In that matter, the plaintiff and her husband ordered a pizza and mozzarella sticks from Brooklyn’s.  When brought back to their car, the pizza was placed on the floor while the plaintiff carried the container of mozzarella sticks and container of sauce (which were both in a bag) on her lap.  Plaintiff testified that she knew from previous trips to the pizzeria that the container which held the sauce was hot enough that she had to put the container down when holding it.</p>
<p style="text-align: justify;">On their way home, plaintiff started to “feel the burn.”  She looked down and saw marinara sauce on her jeans.  Feeling the sauce burning her thigh, plaintiff threw the bag containing the mozzarella sticks and sauce out of her car.  Plaintiff later went to the hospital.  Her medical expert opined that she sustained a third to second degree burn on her thigh.  Six months later, an investigator retained by plaintiff purchased some mozzarella sticks from Brooklyn’s and found that the marinara sauce was 178 degrees Fahrenheit.  According to plaintiff’s medical expert, a hot liquid at 162 degrees can cause second or third degree burns to human skin.</p>
<p style="text-align: justify;">After being sued, Brooklyn’s moved for summary judgment, arguing that plaintiff spoliated the most relevant piece of evidence.  Plaintiff had alleged two theories of liability: (1) negligent packaging; and (2) negligent sale of flaming hot sauce.  The trial court granted the motion and dismissed the complaint, reasoning that lesser discovery sanctions would not contribute to plaintiff being able to prove her claim nor provide an avenue for Brooklyn’s to defend itself.</p>
<p style="text-align: justify;">The appellate division reversed.  It reasoned that plaintiff should only be barred from pursuing a claim of negligent packaging since the actual packaging had been spoliated by plaintiff who, the court felt, should have been aware that a lawsuit was probable at the time she sustained the burn in her car.  However, the loss of the container did not irreparably prejudice Brooklyn’s ability to defend itself against the claim that the sauce was too hot when sold.</p>
<p style="text-align: justify;">This lawsuit is reminiscent of the famous McDonalds “hot coffee” case, which took years of litigation and appellate practice to finally result in a nominal settlement after appellate practice found that the jury award was extremely excessive (recall that the jury awarded millions of dollars to the injured plaintiff in the McDonalds case).  However, this case is a reminder to restaurants (and their insurers) that these types of claims continue to be brought and steps should be taken to ensure that the food items they serve are as safe as possible.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution.  Please email <a href="">Colleen Hayes</a> with any questions.</p>


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