Hollinger v. Shoppers Paradise of New Jersey, Inc.

• Decision Date: 24 March 1975
• Citation: 134 N.J.Super. 328,340 A.2d 687
• Parties: Eric HOLLINGER et al., Plaintiffs, v. SHOPPERS PARADISE OF NEW JERSEY, INC., et al., Defendants.
• Court: New Jersey Superior Court

Page 328

134 N.J.Super. 328

340 A.2d 687

Eric HOLLINGER et al., Plaintiffs, v. SHOPPERS PARADISE OF NEW JERSEY, INC., et al., Defendants.

Superior Court of New Jersey Law Division.

March 24, 1975.

Supplemental Opinion May 13, 1975.

James D. Opfer, Jr., Saddle Brook, for plaintiffs (Cohn & Lifland, Saddle Brook, attorneys).

Thomas J. Osborne, Jr., for defendant Shoppers Paradise of New Jersey, Inc. (Vaccaro, Osborne & Curran, Paramus, attorneys).

Arnold L. Stadtmauer, Clifton, for defendant John Windish trading as Windish Pork Store (Celentano & Stadtmauer, Clifton, attorneys).

Peter S. Patuto, Orange, for defendant Dubuque Packing Co.

ROSENBERG, J.S.C.

This matter involves various claims for damages suffered by plaintiffs when they allegedly contracted trichinosis from pork sold by defendant Shoppers Paradise of New Jersey, Inc. ¹ Trial was held on March 18 to 24, 1975. At the close of plaintiffs' case Shoppers Paradise moved for involuntary dismissal of the claims against it under R. 4:37--2(b), upon which motion the court reserved decision. At the conclusion of its case Shoppers Paradise renewed its application for involuntary dismissal and defendants Windish and Dubuque Packing Co. moved under R. 4:37--2(c) to dismiss the claims for contribution asserted against them by Shoppers Paradise. After argument all motions for dismissal were granted. An order of dismissal as to all defendants encompassing these rulings was entered on April 7, 1975. Plaintiffs appeal this order in a notice of appeal served April 28, 1975. This supplemental opinion is filed in response to that notice pursuant to R. 2:5--1(b) to aid the appellate court in its determinations.

The principal facts of this case do not appear to be in dispute. On October 9, 1971 Mrs. Hollinger purchased a raw pork roast, which was sliced into a quantity of pork chops, at the Shoppers Paradise store located at Route 46 in Fairfield, New Jersey. Some of these chops were prepared by Mrs. Hollinger and consumed by her, her husband and their four children on October 10, 1971. Within sometime thereafter (the precise period is unclear) all the family members experienced some muscle pain, nausea and diarrhea; in the case of Mrs. Hollinger the symptoms were aggravated and included chest pains, heavy perspiration, skin rash and swelling of various parts of the body. This led to her hospitalization, where it was determined that she suffered from a parasitic infection diagnosed as trichinosis. Both Mr. Hollinger and the children were tested for this condition, with the results indicating no trace of the disease in Mr. Hollinger but mild cases in the children; at present, with the exception of muscle pain in one of the children, there is no indication of either the symptoms of the illness or the presence of trichinae parasites in Mr. Hollinger or the children. Although her condition has improved, Mrs. Hollinger still complains of muscle aches, chest pains, headaches and a spotting of the skin. Blood tests indicate that she continues to suffer from trichinosis.

An understanding of the nature and characteristics of the disease is helpful in analyzing the issues raised in this case. Under Evid.R. 9(2)(e) the court takes judicial notice of facts contained in two United States Department of Agriculture (U.S.D.A.) publications: 'Facts About Trichinosis,' Agriculture Research Bulletin ARS 91--72 (April 1969), and 'Trichinosis,' Leaflet No. 428, U.S.D.A. (revised September 1968). The disease is caused by parasitic worms called trichinae (Trichinella spiralis) and may infect humans eating raw or under-cooked pork in which the parasite is encysted. On ingestion of contaminated meat the parasites travel into the intestinal tract where they reproduce and move through the bloodstream to invade the voluntary muscles, growing and eventually becoming encysted therein. When the parasites reach the intestines they may cause upset stomach, vomiting, diarrhea and other symptoms of intestinal disorder. During the period of migration and encystment the host may have muscular pain, rising fever, headaches and prostration. When the larvae reach the muscles, swelling of the face and other parts of the body, sore eyes, hemorrhaging under the skin, sore throat, headache, fever and difficulty breathing commonly are experienced. After encystment these symptoms gradually may disappear although muscle stiffness can linger in severe cases. Most patients suffering from the disease recover with proper treatment.

Stringent control over the feeding of hogs and meat inspection procedures which assure that pork used in products customarily eaten without further cooking has been treated so as to kill trichinae have helped reduce the extent of the disease from an estimated incidence of about 16% Of the population during the 1930's and early 1940's to approximately 4 to 5% In recent years. Despite these gains in disease control, there is no completely effective method for detecting trichinae in raw pork. As a result the U.S.D.A. does not require inspection of unprocessed meat sold for human consumption. However, it is a known scientific fact that heating raw pork above a temperature of 137 F. will destroy the parasite and render the meat safe to eat. Thorough cooking is the only means of insuring that raw pork is completely free of trichinae.

It is against this background that defendant's motion for involuntary dismissal is considered. R. 4:37--2(b) provides that dismissal should be granted if 'upon the facts and upon the law the plaintiff has shown no right to relief.' Although the court is bound to accept as true all evidence of the party opposing the motion and give him the benefit of all legitimate inferences to be deduced therefrom, Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969), the fact remains that plaintiff must make out a sufficient case upon the law as well as the facts to get into the jury. As the following discussion indicates, it is the opinion of this court that the Hollingers have failed to establish their right to relief as a matter of law and the motion of Shoppers Paradise for dismissal therefore is properly granted.

The first three counts of the amended complaint reflect the grounds upon which plaintiffs seek to predicate liability. Count one appears to rely upon a theory of strict liability in tort, alleging that Shoppers Paradise is liable for damages resulting from the sale of impure and unwholesome meat; count two asserts that Shoppers Paradise breached warranties of fitness of the product sold; count three sounds in negligence and recites that the defendant carelessly put into the stream of commerce meat which caused plaintiffs injury. The single operative element underlying all these theories of recovery is that the defendant improperly sold a food product which resulted in plaintiffs' illness.

Considering first the third count of the complaint, a review of the evidence indicates that plaintiffs have failed to supply proof of negligence sufficient to overcome defendant's motion. In contrast to recovery under a strict liability or breach of warranty theory, where it is unnecessary to prove acts of negligence on the part of the producer or seller of goods, Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 66, 207 A.2d 305 (1965), recovery for negligence requires an affirmative showing that defendant deviated from accepted standards of conduct in its actions or failure to act. Sanzari v. Rosenfeld, 34 N.J. 128, 134, 167 A.2d 625 (1961); McKinley v. Slenderella Sys. of Camden, N.J., Inc., 63 N.J.Super. 571, 579, 165 A.2d 207 (App.Div.1960). The record is bare of evidence which directly or by inference shows that Shoppers Paradise employees did anything which they should not have done or failed to do something which they should have done in handling the meat purchased by Mrs. Hollinger. Since there is no method for detecting the presence of trichinae in raw pork, failure to so detect the parasite cannot comprise chargeable negligence. Absent even a scintilla of evidence upon which a finding of negligence can be based, count three of the complaint should not reach the jury. R. 4:37--2(b); Dolson v. Anastasia, Supra, 55 N.J. at 5, 258 A.2d 706.

It should be noted that Shoppers Paradise appears to be in technical violation of our criminal statutes in sale of the pork chops. N.J.S.A. 2A: 108--1 provides:

Any person who sells or offers or exposes for sale, the flesh of any animal that has died otherwise than by slaughter, or has been slaughtered while diseased, or any contagious or unwholesome flesh or sells or offers or exposes for sale unwholesome food, drink or liquor, is guilty of a misdemeanor.

Normally, violation of a penal statute may be adduced as evidence of negligence in a civil suit. Horbal v. McNeil, 66 N.J. 99, 103--104, 328 A.2d 604 (1974); Ellis v. Caprice, 96 N.J.Super. 539, 553, 233 A.2d 654 (App.Div.1967), certif. den. 50 N.J. 409, 235 A.2d 901 (1967); Mattero v. Silverman, 71 N.J.Super. 1, 9, 176 A.2d 270 (App.Div.1961), certif. den. 36 N.J. 305, 177 A.2d 490 (1962); Rizzolo v. Pub. Serv. Co-ord. Transport, 111 N.J.L. 107, 111, 166 A. 456 (E. & A.1933). For this rule to apply in the instant case it is necessary to define raw trichinous pork as an 'unwholesome food.' Although there are no reported cases construing the statute or defining its terms, a majority of jurisdictions hold that raw trichinous pork is not unwholesome within the meaning of pure food statutes. Zorger v. Hillman's, 287 Ill.App. 357, 4 N.E.2d 900 (App.Ct.1936); Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N.W. 414 (Sup.Ct.1934); Dressler v. Merkel, Inc., 247 App.Div. 300, 284 N.Y.S. 697 (App.Div.1936), aff'd 272 N.Y. 574, 4 N.E.2d 744 (Ct.App.1936); Schneider v. Suhrmann, 8 Utah 2d 35, 327 P.2d 822 (Sup.Ct.1958); cf. Leonardi v. A. Habermann Provision Co., 143 Ohio St. 623, 56 N.E.2d 232 (Sup.Ct.1944); see also, Frumer & Friedman, Products Liability, § 24.04(2)(c) (19...