No Consumer Fraud Act “Ascertainable Loss” Where Defendant Erroneously Sold Plaintiffs Food That Violated Their Religious Beliefs

Gupta v. Asha Enterprises, LLC, 422 N.J. Super. 136 (App. Div. 2011).  Many religious believers have dietary restrictions.  When they purchase food that is represented as being acceptable under those dietary laws, they expect that those representations are true.  But if the representations are not true, do the buyers suffer an “ascertainable loss of moneys or property, real or personal” under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”)?  In this case, the Appellate Division found no such loss and upheld summary judgment on the CFA claim and others, while permitting a breach of express warranty claim to go forward.  Judge Payne wrote the opinion.

Plaintiffs were Hindu vegetarians.  According to plaintiffs, Hindu vegetarians believe that if they eat meat, “they become involved in the sinful cycle of inflicting pain, injury and death on God’s creatures,” so that they “can never go to God after death, which is the ultimate goal for Hindus.”  One who eats meat, even unknowingly, must undergo a purification ceremony at a particular site in India.

Plaintiffs ordered vegetarian samosas, which are stuffed pastries, from defendant, an Indian restaurant.  Plaintiffs told the restaurant that the order was for vegetarians, and were assured that the restaurant did not make meat samosas.  The package in which the samosas came said “VEG samosas” on it.  When plaintiffs began to eat, however, they realized after a time that the samosas contained meat.  According to the restaurant, plaintiffs’ order was inadvertently switched with that of another customer, who had ordered meat samosas.  The restaurant prepared a new order of vegetarian samosas for plaintiffs, who accepted them without making any payment.  But, to plaintiffs, the damage had already been done.

Plaintiffs sued, asserting theories of negligence, negligent infliction of emotional distress, consumer fraud, product liability, and breach of warranty.  Defendant moved to dismiss for failure to state a claim, but the Law Division converted the motion to a summary judgment proceeding and granted summary judgment to defendant on all claims.  Plaintiffs appealed.

The Appellate Division affirmed the summary judgment on all claims except breach of express warranty.  The product liability-related claims were subsumed by the Product Liability Act, N.J.S.A. 2A:58C-1 to -11, which plaintiffs could not invoke because they were alleging that they were provided the wrong product, not that the samosas were defective.  The claims for “negligence resulting in spiritual injury” and negligent infliction of emotional distress failed because they did not satisfy the restrictive standards of the negligent infliction tort.

As to the CFA claim, Judge Payne rejected the Law Division’s threshold ruling that, as a matter of law, defendant had not misrepresented the samosas.  She noted plaintiffs’ evidence that they were repeatedly told that their samosas were vegetarian, including by the “VEG samosas” notation on their order, and that the restaurant did not even make meat samosas.

But the panel found no ascertainable loss of money or property.  The restaurant had replaced the samosas without charge, and the sums that plaintiffs sought to travel to India for the purification ceremony was merely “the cost of cure for an alleged spiritual injury that cannot be categorized as either a loss of moneys or property.”  Judge Payne cited cases, including one from the Supreme Court, holding that non-economic losses or emotional distress damages are not recoverable under the CFA, and stated that the panel was “unwilling to expand the definition of ascertainable loss to cover the injuries alleged by plaintiffs.”

The panel was properly cautions about going beyond what the Supreme Court has said about ascertainable loss under the CFA.  But in these unique circumstances, there was room for a contrary result.

The Indian restaurant defendant might, at trial, be shown to have known about the religious strictures applicable to the Hindu vegetarian plaintiffs.  After all, some significant portion of the restaurant’s customers are likely Hindu.  Thus, the need for a purification ceremony was foreseeable by the defendant and was not unreasonable, as it was based on recognized religious doctrine.  The “moneys” necessary to allow plaintiffs to undergo that ceremony are certainly “ascertainable,” and they are a “loss” that came about “as a result of” defendant’s wrongful act, all as required by the CFA, N.J.S.A. 56:8-19.  All this is especially so given the liberal interpretation to which the CFA is entitled.

Since the Appellate Division revived the breach of warranty claim, the CFA issue may ultimately become moot.  If that does not occur, though, the CFA question might be an interesting one for eventual Supreme Court review.