Robert Gunning (New Jersey Partner) on the granting of summary judgment to his client, a delicatessen and the dismissal of plaintiff’s Complaint pursuant to New Jersey’s two-year statute of limitations. The matter was litigated in two states for more than five years.
On November 8, 2018, plaintiff was in New Jersey on a business trip with several co-workers and ordered salads and sandwiches from the client, delicatessen. Plaintiff traveled back to his home in New Hampshire the following day and on November 12th was admitted to a hospital in Manchester. Thereafter, he was admitted to the ICU and later underwent surgery to remove a portion of his small intestines. Plaintiff alleged that the romaine lettuce used to prepare the Mediterranean salad was contaminated with a strain of E. Coli reported by the CDC to be in 16 states from October 7, 2018 to December 4, 2018.
On April 29, 2021, plaintiff filed his original Complaint in the United States District Court for the District of New Hampshire, naming several defendants, alleging claims for strict liability, breach of warranty and negligence. Although filed after New Jersey’s two-year statute of limitations the Complaint was timely filed under New Hampshire’s three-year statute of limitations. On March 21, 2023, plaintiff’s federal action was dismissed for lack of subject-matter jurisdiction. Linda Smith (New Hampshire Partner) defended the federal action.
On November 7, 2022, plaintiff filed a Complaint in the New Jersey Superior Court against the delicatessen alleging a single count for Breach of Express Warranty pursuant to the Uniform Commercial Code (UCC) adopted as N.J.S.A. 12A:2-313. The statute of limitations for the UCC claim was four years pursuant to N.J.S.A. 12A:2-725. However, New Jersey case law stated that section 725 did not apply to claims for personal injury from a contract for sale.
Following the completion of party depositions a motion for summary judgment was filed on behalf of the delicatessen arguing that plaintiff was asserting a claim for personal injury and that the two-year statute of limitations applied. The case law interpreting the UCC statute of limitations, section 725 made it clear that a Breach of Express Warranty claim that arises from a contract of sale and asserts personal injury damages was governed by the general two-year statute of limitations, N.J.S.A. 2A:14-2, rather than the limitation provision of the UCC. Heavner v. Uniroyal, Inc., 63 N.J. 130, 146 (1973).
On December 16, 2024, the trial Judge issued a 12-page decision confirming that the two-year statute of limitations was applicable and that the Court was “constrained to grant the motion for summary judgment.” Thereafter, plaintiff appealed and the appellate division affirmed summary judgment on March 17, 2026. Plaintiff then petitioned the New Jersey Supreme Court for certification, which was denied on September 29, 2026.
