                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3739-16T1

KATHLEEN NICHOLSON and
JOHN NICHOLSON, husband
and wife,

        Plaintiffs-Appellants,

v.

BLOOMIN BRANDS, INC. and
OUTBACK STEAKHOUSE,

        Defendants-Respondents.

______________________________

              Argued June 7, 2018 – Decided July 30, 2018

              Before    Judges    Haas,   Rothstadt,     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No.
              L-0432-15.

              Chris H. Colabella argued the cause for
              appellants (Gruber, Colabella, Liuzza &
              Thompson, attorneys; Chris H. Colabella, of
              counsel; Virginia D. Liotta, on the briefs).

              Norman W. Briggs argued the cause for
              respondents   (Briggs   Law    Office, LLC,
              attorneys; Norman W. Briggs, of counsel;
              Adrienne Chapman, on the brief).
PER CURIAM

     Plaintiff Kathleen Nicholson and her husband John Nicholson,

asserting a per quod claim, filed a six-count complaint against

defendants Bloomin Brands, Inc., Outback Steakhouse, and various

fictitious entities, when Kathleen1 became ill after dining at

defendant Outback Steakhouse (Outback).   Alleging that her dinner

at Outback was the source of the Salmonella bacteria that caused

her illness, Kathleen asserted claims for negligence, breach of

the implied warranty of merchantability, N.J.S.A. 12A:2-314, and

violations of the New Jersey Food and Drug Act, N.J.S.A. 24:1-1

to 17-8, and the New Jersey Products Liability Act (NJPLA),

N.J.S.A. 2A:58C-1 to -11.   After discovery concluded, the trial

court granted defendants' motion for summary judgment based on

plaintiffs' failure to establish causation.     Plaintiffs appeal

from the March 20, 2017 memorializing order dismissing their

complaint with prejudice.   We affirm.

     We derive the following facts from evidence submitted by the

parties in support of, and in opposition to, the summary judgment

motion, viewed in the light most favorable to plaintiff.   Angland

v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).


1
   We refer to the Nicholsons by their first names to avoid any
confusion caused by their common surname. We intend no disrespect.

                                2                          A-3739-16T1
On Sunday, April 7, 2013, at approximately 2:00 p.m., plaintiffs

dined at Outback with their daughter, her fiancé, her fiancé's

mother, and the mother's boyfriend.        Kathleen consumed a Samuel

Adams beer, a non-seafood cream-based soup, mahi-mahi, shrimp,

scallops, and possibly a potato.       No one else in her party ordered

or consumed those items, and she did not eat any appetizers or any

food from anyone else's plate.         In the forty-eight hour period

prior to eating at Outback, Kathleen had only consumed a chocolate

donut on Friday night, chocolate chip cookies and saltine crackers

on Saturday night, and coffee with milk each morning, including

Sunday morning prior to arriving at Outback.2

     Kathleen and her party left Outback at about 4:30 p.m., and

plaintiffs arrived home at about 6:30 p.m.         Later that night, at

about 11:30 p.m., Kathleen became "very nauseous" and vomited

several times throughout the night.         The next morning, Monday,

April 8, 2013, at about 10:00 a.m., Kathleen began to experience

diarrhea.   From Tuesday, April 9, 2013, into Wednesday, April 10,

2013, Kathleen developed a slight fever and chills, while the

vomiting and diarrhea continued.          Other than water and Pepto-

Bismol,   Kathleen   consumed   nothing   during   this   entire   period.


2
   At her deposition, Kathleen testified that on the two days
immediately preceding her visit to Outback, she had worked as a
hostess at Red Lobster from 11:00 a.m. to 9:00 p.m. each day, but
did not eat anything while at work.

                                   3                               A-3739-16T1
Initially, Kathleen believed she was suffering from a stomach

virus. However, when her symptoms worsened, she went to her doctor

on Thursday, April 11, 2013, and he promptly sent her to the

emergency room.

       At the hospital, the responding physicians diagnosed Kathleen

with    "gastroenteritis,        severe       dehydration,   sepsis,        renal

insufficiency[,] and cardiac (demand) ischemia."3                 Blood tests

revealed Kathleen had Salmonella species Group D in her system.4

She    was   later   diagnosed   with       "hypovolemic   and   septic     shock

associated with severe colitis, sigmoid perforation, and acute

kidney injury."      On April 16, 2013, she underwent a colostomy to

repair a perforation in her colon.               She remained hospitalized

until April 25, 2013, when she was transferred to Troy Hill Center

for Rehabilitation, where she remained until May 9, 2013.                  On May

8, 2014, Kathleen underwent a reversal of her colostomy.

       Plaintiffs filed suit against defendants on April 2, 2015.

To support their claim, they submitted expert reports prepared by


3
   Medical records described Kathleen at the time in question as
a sixty-four year old heavy smoker with no significant past medical
history.
4
  At her deposition, Kathleen testified that "[o]nce they said it
was [S]almonella poisoning, [she] linked it to [the Outback meal],
because that was the only thing [she] had to eat." However, she
acknowledged that none of her treating doctors told her that the
Outback meal was the source of the Salmonella, and none of the
other members of her party became ill after dining at Outback.

                                        4                                 A-3739-16T1
George J. Zameska, Jr., M.S., R.S., C.F.S.P., and Dr. Richard

Snepar, M.D., F.A.C.P., as well as the experts' corresponding

deposition testimony.        After reviewing the discovery, Zameska,

plaintiffs' liability expert, concluded that although at the time

of the incident, Outback "had current valid permits and was legally

operating" and there were no reported incidents of other patrons

becoming ill after eating at Outback, Outback had "failed to meet

legal requirements regarding having properly trained and certified

food personnel present and did not act responsibly and effectively

in its operation to manage foodborne disease risk factors to

protect    [Kathleen]     from    exposure       to    sources    of     Salmonella

infection."

     According to Zameska, "Salmonella infection is a foodborne

gastrointestinal illness that results from ingestion of enteric

pathogenic organisms, viruses or bacteria, which can live and

inhabit    the      intestinal    tract     of        humans,"   resulting       "in

inflammation or damage to the intestinal tract and generally can

cause    reaction    symptoms    of   vomiting        and   diarrhea."      Zameska

reported that the Salmonella Group D organisms identified in

Kathleen's blood culture analysis included species that cause

"foodborne illness outbreaks . . . associated with poultry and

eggs."    He did not indicate, however, that any food Kathleen ate

was a natural carrier of Salmonella.

                                        5                                   A-3739-16T1
     According to Zameska, the two most common ways to contract

foodborne Salmonella infections are from cross-contamination by

ingesting a food that was handled or touched by a person infected

with these organisms or by "[d]irect ingestion of a food that is

naturally contaminated with Salmonella [and] is not cooked, held,

or cooled properly, thus allowing this organism to survive or

grow."   At his deposition, Zameska acknowledged he could not

identify a specific food as the cause of Kathleen's Salmonella

infection or an employee that caused the illness.          Zameska also

admitted there was "only the possibility that an employee could

be a source of Salmonella in [Outback]," and there was "no specific

identified   food   handling   practice"   or   direct   evidence   of   a

sanitation or cleaning practice that caused Kathleen's illness.

     He also agreed with defendants' expert, John J. Farmer, III,

Ph. D., that "[f]or 2013, the number of Salmonella infections with

no proven source/cause [was] probably greater than 99.9 percent."5


5
  Zamesky explained that a "confirmed foodborne illness outbreak"
occurs when "the agent organism that caused the illness" is also
found "in the food[,] [a]nd for 99.9 percent of the cases, that
doesn't happen." Zamesky also acknowledged Dr. Farmer's reference
in his report to an April 2013 New Jersey Department of Health
(DOH) investigation that confirmed Kathleen's case of Salmonella
infection but concluded that the source of infection was unknown.
Relying on the DOH investigation, Dr. Farmer had opined that
Kathleen's Salmonella infection "was not caused by the food she
ate, or by any other exposure" at Outback but "could have been
caused by a contaminated food she handled or ate, or . . . by many


                                   6                            A-3739-16T1
Notably, Zameska also admitted that "[j]ust because someone says

they're sick does not necessarily mean that the last meal they

consumed is what made them sick."

       Nonetheless, Zameska concluded it was likely that Kathleen

"was    served    food(s)     that     contained    Salmonella    organism

contaminates, especially from foods ordered that were not fully

processed to reduce pathogens to safe levels; or being served

foods cross-contaminated with Salmonella organisms by equipment,

utensils, or workers."       To support his conclusion, Zameska cited

the absence of documentation6 demonstrating: (1) that Outback

managers and employees had received "training in regard to food

safety practices necessary to ensure the safe production of food";

(2) "that foods being offered for consumption [were] properly

treated to reduce pathogens to safe levels"; (3) the monitoring

of   safety   requirements   for     food   preparation,   production,   and

handling; (4) compliance with "sanitation practices and procedures

to ensure establishment surfaces and equipment [were] free of

contamination"; (5) "[c]ompliance with ill employee exclusion and

restrictions"; and (6) the monitoring of food employees to ensure



different exposures that she had in the [sixteen]-day period before
her [symptoms] began."
6
    At his deposition, Zameska testified that if shown                   the
appropriate documentation, he would modify his conclusions.

                                       7                           A-3739-16T1
that potential Salmonella carriers "follow[ed] established hygiene

and hand washing requirements."              In addition, Zameska pointed to

the fact that the "[f]oods consumed by [Kathleen] were offered

with a consumer advisory," despite consumers not considering such

foods high risk and despite possibly violating New Jersey statutory

requirements for foods being served with a consumer advisory.7

      Further, according to Zameska, Kathleen "was not known to be

exposed to or to have consumed food or beverage likely to be a

source of Salmonella infection prior to consumption of the Outback

Steakhouse meal," and "[t]he meal, the time-frame for the disease

symptoms   to    occur,   and   development        and    progression   of    the

subsequent    illness     [were]   all       consistent    with   ingestion    of

Salmonella contaminated food at the Outback Steakhouse."                Zameska

explained that Kathleen's "illness onset [was] consistent with

published onset times" for the infection, which vary from six to

seventy-two hours,8 with the ensuing illness lasting for four to

seven days.     Additionally, Zameska noted that at sixty-four years

old, Kathleen's age "place[d] her [at] a higher risk for acquiring




7
    See N.J.S.A. 24:1-1 to :21-53.
8
    At his deposition, Zamesky testified the normal exposure
timeframe for the type of Salmonella infection contracted by
Kathleen was "probably more close to six to [forty-eight] hours"
as opposed to seventy-two hours.

                                         8                              A-3739-16T1
foodborne illness due to the potential of being in an immune-

compromised population group."

      After reviewing Zameska's report, Kathleen's medical records,

and plaintiffs' deposition testimony, plaintiffs' medical expert,

Dr.   Snepar,      diagnosed     Kathleen     as     suffering    from    "severe

Salmonella    gastroenteritis"          and   concluded    her    "illness      was

temporally related to her dining at [Outback]."                Dr. Snepar noted

"[h]er eating habits prior to the onset of illness were austere

and of low risk for infection." Thus, he opined "with a reasonable

degree of medical certainty" that "[t]he meal, the symptom free

interval,    and    subsequent    illness     [were]    all    consistent      with

ingestion    of    [Salmonella]     contaminated        food     at   [Outback]."

However, like Zameska, Dr. Snepar could not identify which food

product,     employee,    or     food     handling    violation       caused    the

Salmonella infection in Kathleen.

      After discovery ended, defendants moved for summary judgment,

or alternatively, to bar plaintiffs' experts' opinions at trial.

After oral argument, on March 20, 2017, the court issued a written

decision granting defendants' motion.                Citing Koster v. Scotch

Assocs., 273 N.J. Super. 102, 105 (Law Div. 1993) and Cruz-Mendez

v. ISU/Ins. Servs. of San Francisco, 156 N.J. 556 (1999), the

court noted that "[w]hile a restaurant is strictly liable for

serving    adulterated    food,"        plaintiffs    "must    still     establish

                                          9                                A-3739-16T1
causation."      However, according to the court, plaintiffs "failed

to identify the source of illness or a procedure [d]efendants

breached."      Instead, Kathleen stated "that no doctor had told her

the source of her illness," and "Zameska also agreed there was no

source   of    [S]almonella       identified,   or   specific    food   handling

practice at Outback that caused the illness."

      In rejecting plaintiffs' argument that temporal association

alone was sufficient to maintain her cause of action because the

connection      between     the    causal   event    and   the    injury     were

particularly strong, the court explained:

              The case [p]laintiffs utilize for that
              proposition, however, was one where the
              defendant had been cited for health code
              violations. Indeed, several unpublished cases
              follow that same reasoning – where a defendant
              had been cited for a health code violation,
              temporal association of plaintiff's illness is
              sufficient to defeat summary judgment. Such
              violation has not been found in this matter.

                   . . . .

                   This [c]ourt recognizes the unique
              difficulties      [S]almonella      poisoning
              present[s] to plaintiffs, with regards to
              causation and breach.    However, plaintiffs
              must be able to identify some fact beyond
              temporal association which would allow a
              rational fact-finder to find in plaintiff[s']
              favor.

Having granted defendants' summary judgment motion, the court took

"no   position    as   to   [d]efendant[s']     request    for   [p]laintiffs'


                                       10                                A-3739-16T1
experts' reports to be barred."    The court entered a memorializing

order on the same date, and this appeal followed.

     On appeal, plaintiffs argue the court erred in granting

summary   judgment   to   defendants   because   plaintiffs   offered

sufficient proof to demonstrate a causal link between the Outback

meal and Kathleen's Salmonella infection, such that the matter

should have gone to the jury.     We disagree.

     We review a grant of summary judgment by applying the same

standard used by the trial court. Steinberg v. Sahara Sam's Oasis,

LLC, 226 N.J. 344, 366 (2016).     That standard is well-settled.

          [I]f the evidence of record—the pleadings,
          depositions, answers to interrogatories, and
          affidavits—"together   with   all   legitimate
          inferences therefrom favoring the non-moving
          party, would require submission of the issue
          to the trier of fact," then the trial court
          must deny the motion. On the other hand, when
          no genuine issue of material fact is at issue
          and the moving party is entitled to a judgment
          as a matter of law, summary judgment must be
          granted.

          [Ibid. (citations omitted) (quoting R. 4:46-
          1(c)).]

     Kathleen's claim under the NJPLA incorporates all her other

claims, as the NJPLA subsumes claims of product defect sounding

in negligence.   Ford Motor Credit Co., LLC, v. Mendola, 427 N.J.

Super. 226, 240 (App. Div. 2012) ("[w]hether couched in terms of

negligence, strict liability, or breach of an implied warranty, a


                                  11                          A-3739-16T1
product liability cause of action is subject to [the NJPLA].").

Under the NJPLA, a product liability action is "any claim or action

brought by a claimant for harm caused by a product, irrespective

of the theory underlying the claim, except actions for harm caused

by breach of an express warranty."   N.J.S.A. 2A:58C-1(b)(3).   This

includes claims brought for harm caused by food cooked and sold

at restaurants.   Gupta v. Asha Enters., L.L.C., 422 N.J. Super.

136, 145 (App. Div. 2011).    Therefore, a restaurant is strictly

liable to its consumers under the NJPLA for serving adulterated

food.   Koster, 273 N.J. Super. at 110-11.

     To establish liability under the NJPLA, a plaintiff has the

burden of proving by a preponderance of the evidence that "the

product was defective, that the defect existed when the product

left the manufacturer's control, and that the defect proximately

caused injuries to the plaintiff, a reasonably foreseeable or

intended user."   Boyle v. Ford Motor Co., 399 N.J. Super. 18, 34

(App. Div. 2008) (quoting Myrlak v. Port Auth. of N.Y. & N.J., 157

N.J. 84, 97 (1999)).    The presence of Salmonella in food is a

defect, and a defendant is liable under the NJPLA if the presence

of Salmonella causes a consumer's illness.   See, e.g., Koster, 273

N.J. Super. at 110-11 (holding defendant restaurant liable under

the NJPLA for serving food containing Salmonella); McGuinness v.

Wakefern Corp., 257 N.J. Super. 339, 341-42 (Law Div. 1991)

                               12                           A-3739-16T1
(allowing     plaintiffs    to    bring   claim   against    suppliers     of

ingredients of lasagna containing Salmonella).

     However, "[e]ven in a strict-liability action, a plaintiff

must prove causation." Cruz-Mendez, 156 N.J. at 574. To establish

causation, a plaintiff must prove the defendant's act or omission

was both the factual and proximate cause of his or her injury.

Ibid.   The defendant's act or omission is the factual cause of an

injury if, "but for the event, the [injury] probably would not

have happened."     Ibid.   Proximate cause is "any cause which in the

natural     and   continuous     sequence,   unbroken   by   an   efficient

intervening cause, produces the [injury] and without which the

[injury] would not have occurred."           Conklin v. Hannoch Weisman,

145 N.J. 395, 418 (1996).

     "Generally, the determination of proximate cause is an issue

of fact for the [factfinder]."            Cruz-Mendez, 156 N.J. at 576.

However, courts should not send a case to the jury if the nature

of the evidence would not allow them to determine the probable

cause of the plaintiff's injury without guess or speculation.            See

Germann v. Matriss, 55 N.J. 193, 208-09 (1970) (finding error in

the trial court's decision to deny defendant judgment at the close

of the case where the evidence was "barren of any circumstances

on the basis of which a reasonable [person] could attribute any



                                     13                             A-3739-16T1
greater probative force" to any one of the proposed theories for

how plaintiff was exposed to a tetanus spore).

            If the proof adduced at trial simply shows a
            number of possible causes, only one of which
            could be charged to the [defendant's] lack of
            due care, for the presence of the factor which
            eventuated in injury[,] the issue of the
            [defendant's]    responsibility    cannot   be
            submitted to the jury for determination. To
            do so would be to authorize a decision on the
            basis of conjecture or speculation.      It is
            only when there are circumstances present from
            which a reasonable [person] could find that
            the [defendant's] want of due care was more
            likely the probable cause that the issue of
            liability   must    go   to   the   jury   for
            determination.

            [Id. at 208.]

     Absent direct evidence of Salmonella contamination, courts

have accepted circumstantial evidence of causation, including

unsanitary conditions at the defendant restaurant and health code

violations.     Koster, 273 N.J. Super. at 105.        Courts have also

found   a   reasonable   inference   of   causation   where   a   plaintiff

provided evidence that other people who ate allegedly contaminated

food also became ill.     See McGuinness, 257 N.J. Super. at 341-42.

Similarly, plaintiffs can prove causation by providing evidence

that all those who ate a certain food became ill, but the one

person who did not eat it was not affected.             Lipari v. Nat'l

Grocery Co., 120 N.J.L. 97, 98-99 (1938); Griffin v. James Butler

Grocery Co., 108 N.J.L. 92, 93-94 (E & A 1931).

                                     14                             A-3739-16T1
     Here,     plaintiffs'      proofs     did     not    permit   a   reasonable

inference that defendants' acts or omissions were the probable

cause of Kathleen's illness, and, like the trial court, we are

satisfied that granting defendants' summary judgment motion was

appropriate.      We   reject    plaintiffs'        argument    that   the     court

erroneously required them to prove causation "by direct evidence

of the source alone," a "requirement [that] is not present in the

prevailing case law."     On the contrary, the court expressly noted

that temporal association combined with circumstantial evidence

such as known health code violations, none of which was present

in this case, would have been sufficient to withstand summary

judgment.

     Indeed, other than temporal association, plaintiffs presented

no evidence that anyone else in their party or that anyone else

who ate at Outback that day became ill.                  Plaintiffs also failed

to eliminate other possible sources of contamination.                        In the

seventy-two hours before she became ill, Kathleen worked two shifts

at another restaurant.        Although, in her capacity as a hostess,

she did not prepare or touch food, plaintiffs' experts did not

negate the possibility of cross-contamination at that restaurant.

     We also reject plaintiffs' contention that the trial court

failed to properly consider their experts' opinions, particularly

their   liability   expert,     to   find    the    requisite      circumstantial

                                      15                                     A-3739-16T1
evidence.    On the contrary, the court explained that Zameska could

not identify the source of the Salmonella or a "specific food

handling practice at Outback that caused [Kathleen's] illness."

Further,    the    court   expressly    referenced   Zameska's    deposition

testimony that "[j]ust because someone says they're sick does not

necessarily mean that the last meal they consumed is what made

them sick."

       Moreover, Zameska failed to analyze and expressly rule out

the other foods Kathleen consumed during the incubation period to

eliminate other potential sources of Salmonella.          He relied on the

absence of documentation, rather than the presence of violations,

to    support   his   conclusions   regarding     Outback's   training    and

monitoring of employees as well as their production, preparation,

and handling of food, food surfaces, and equipment.              Further, as

noted by the trial court, he could not identify the specific

Outback    food,    employee,   sanitation   or   cleaning    practice   that

caused Kathleen's Salmonella infection and indicated that the

foods she consumed at Outback were not commonly associated with

Salmonella.       Under these circumstances, plaintiffs did not raise

a genuine issue of material fact, and a factfinder could only

guess or speculate that the Outback meal was the proximate cause

of Kathleen's Salmonella infection.          See Germann, 55 N.J. at 208-

09.

                                       16                            A-3739-16T1
Affirmed.




            17   A-3739-16T1
