KYUNG OK SON VS. KAYA SUSHI RESTAURANT (L-6657-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4685-18
KYUNG OK SON,
Plaintiff-Appellant,
v.
KAYA SUSHI RESTAURANT,
MONTAUK SEAFOOD, CO.,
INC.,
Defendant-Respondent.
___________________________
Submitted March 2, 2021 – Decided May 19, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6657-16.
Michael S. Kimm, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Kyung Ok Son became ill after eating a marinated raw crab dish
at Kaya Sushi Restaurant. Plaintiff alleged defendant Montauk Seafood Co.,
Inc. was among the entities that "engaged in sub-standard food sales,
manufacturing, distribution, and/or handling practices and permitted
contaminated food to be served to the general public in violation of the required
food standards."
After plaintiff had settled with Kaya Sushi Restaurant and default had
been entered against defendant, Judge Estela M. De La Cruz conducted a proof
hearing regarding plaintiff's claim against defendant which the judge synopsized
in her written decision: "[T]he product plaintiff consumed was detected to
contain two separate organisms which were directly traceable to the raw crab
meat. Plaintiff argues that the defaulted [defendant's] violation of the Products
Liability Act[,] [(PLA)] N.J.S.A. 2A:58C-1 to -11[,] proximately caused
plaintiff to suffer her injuries and damages."
The judge considered plaintiff's: testimony; amended complaint; request
for default; medical expert's report, de bene esse video deposition testimony and
concomitant transcript; and hospital medical records, and dismissed plaintiff's
complaint with prejudice, concluding plaintiff failed to present any evidence of
defendant's breach of any duty, statute or law to support entry of a judgment.
Plaintiff appeals from that order arguing reversal is required because,
although the judge "seemed to have no problem with recognizing [defendant's]
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liability under the PLA[,] [t]he problem is that [the judge] then committed a
quantum leap by holding that, because plaintiff settled for an adequate sum of
money, she should receive nothing from the defaulting defendant." The judge
said no such thing, and we affirm substantially for the reasons Judge De La Cruz
set forth in her cogent written decision.
The judge considered plaintiff's expert's opinion that plaintiff's illness was
caused by two microorganisms that contaminated the crab meat, one of which
had an incubation period that "could last as long as ten days." Judge De La Cruz
found the expert "prominently refer[red]" to a sanitary inspection municipal
health department inspectors had conducted at the restaurant some two weeks
prior to plaintiff's hospitalization that "documented an environment conducive
to transmitting the infectious agents to the host." The unsanitary conditions
included inadequate hand-washing facilities in the toilet and food-preparation
areas, food products maintained at improper temperatures and flies.
The judge further found the restaurant owner's deposition "revealed . . .
he never worked in a kitchen[,] . . . the chef and his subordinates did not have
food[-]safety[-]handling training" and the owner
admitted he did not know what was required for cold
storage temperatures and described his practice of
purchasing live crabs in boxes and then freezing the live
ones for three days. The crabs were washed with tap
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water of unknown temperature and put in low[-]salt soy
sauce and placed in a refrigerator for two days before
service to customers.
The judge also considered that the expert
noted as "particularly relevant to this case" that
researchers found that [foodborne] infectious agents
survive in raw ready-to-eat crab marinated in soy sauce
[and] . . . that freezing the crab product for long periods
of time is insufficient to exterminate any harmful
organisms including E. coli and vibrio, which have
been known to survive up to three months at frozen
temperatures.
Judge De la Cruz recognized that a manufacturer or seller of a product is
liable under the PLA if the plaintiff proves 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." See Myrlak v. Port Auth.
of N.Y. & N.J., 157 N.J. 84, 97 (1999). And the judge held plaintiff to the
requirement that she prove causation. See Cruz-Mendez v. ISU/Ins. Servs. of
San Francisco, 156 N.J. 556, 574 (1999).
After a careful review of the evidence, the judge concluded plaintiff had
not met her burden:
There is no evidence presented in this record that shows
the product was defective when it was distributed by
[defendant] and under the control of [defendant]. There
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is a complete absence of this evidence since the entire
crux and heart of plaintiff's expert's opinion is that the
food was contaminated as a result of the extremely
unsanitary environment and habits of the host
restaurant. There is no evidence in this record that the
product was defective when it was distributed by
[defendant]. There is simply no evidence to show that
the product [defendant] delivered to Kaya Sushi
Restaurant was defective. What the evidence does
show is that the host restaurant, co-defendant Kaya
Sushi Restaurant's, procedures and environment in food
preparation was likely the cause of the contamination.
"New Jersey's salutary practice has been to allow the trial judge the
discretion to require proof of liability at a default hearing." Heimbach v.
Mueller, 229 N.J. Super. 17, 20-21 (App. Div. 1988); R. 4:43-2(b). Although a
plaintiff is only required to "adduce proofs that the facts alleged 'might have
been the case,'" Heimbach, 229 N.J. Super. at 23 (quoting Trans World Airlines
v. Hughes, 449 F.2d 51, 64 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363
(1973)), denial of judgment for a plaintiff is appropriate if a "necessary element
of plaintiff's prima facie case was missing," ibid. "[T]he question of what proofs
are necessary is inherently within the judge's discretion." See Chakravarti v.
Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). The
record fully supports Judge De La Cruz's well-reasoned determination that
plaintiff failed to proffer any evidence defendant distributed the contaminated
crab.
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Affirmed.
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