NJ's Product Liability Act Is the Exclusive Remedy for Alleged Product Defect, Even Where Plaintiff Seeks Only Economic Damages for Failure to Disclose
Previously I had covered the New Jersey lawsuit brought by the Center for Science in the Public Interest arguing that Denny's committed consumer fraud by not including on its menu the sodium content of its meals. The suit had been dismissed by the trial court.
On January 11, the Appellate Division affirmed the dismissal and reaffirmed the principle that the New Jersey Product Liability Act is the sole and exclusive remedy for defective product claims in New Jersey, and that they cannot be dressed up as Consumer Fraud Act claims for "economic loss" to escape the requirements of the PLA. DeBenedetto v. Denny's, Inc., Slip op., No. A-4135-09T1 (N.J. Super. -- App. Div. Jan. 11, 2011).
Plaintiff did not plead that Denny's had made affirmative misrepresentations. Rather, he pled that Denny's meals were dangerously high in sodium, and that Denny's had a duty to disclose the sodium content. Plaintiff made no allegation of physical injury; rather, he sought recovery for "economic loss."
The Appellate Division held that without an allegation of an affirmative misrepresentation, there can be no Consumer Fraud Act claim based on an allegedly defective product:
The Supreme Court did not hold in Dean [v. Barrett Homes, Inc.] that any defective product claim escapes the exclusive remedy provisions, and the physical injury requirements, of the [Product Liability Act] merely because the plaintiff fashions the claim as one seeking recovery only for "economic loss." . . .
Nothing in the Court's opinion in Dean abrogates, or in any way modifies, the PLA's long-understood requirement that a plaintiff alleging a product is defective or dangerous must also allege [physical or mental] "harm" . . . . Nor does the opinion in Dean alter the Court's prior holding . . . that claims for "'harm caused by a product' are governed by the PLA 'irrespective of the theory underlying the claim.'"
Slip op. at 7-8 (citations omitted).
DeBenedetto is strong confirmation that litigants in New Jersey cannot use the Consumer Fraud Act to invent a "duty to disclose" alleged product risks; rather, they must meet all of the prerequisites of the Products Liability Act.
