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).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3739-16T1

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.
3 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 PeptoBismol, 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.
4 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.
5 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. 
6 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 
7 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.
8 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.
9 A-3739-16T1

foodborne illness due to the potential of being in an immunecompromised 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 
10 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' 
11 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 
12 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)
13 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 
14 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). 
15 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 
16 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. 
17 A-3739-16T1

Affirmed.