HAPPAS, P.J.S.C.

I. Introduction

This opinion addresses defendant Denny's, Inc.'s ("Denny's") motion to dismiss plaintiff Nick DeBenedetto's ("DeBenedetto") second amended class action complaint ("second amended complaint"). On November 10, 2009, this court dismissed plaintiffs first amended class action complaint ("first amended complaint") without prejudice for failure to state a claim1 and afforded plaintiff leave to file an amended complaint. On December 7, 2009, plaintiff filed his second amended complaint. Defendant has now moved to dismiss plaintiffs second amended complaint for failure to state a claim.

DeBenedetto's second amended complaint alleges violations of the New Jersey Consumer Fraud Act ("CFA").2 Specifically, DeBenedetto claims that Denny's "deceptively presents" menu items without disclosing that its meals contain "excessive" amounts of sodium. Although greatly pared down from his first amended complaint,3 DeBenedetto's second amended complaint contains several allegations regarding the dangers of sodium and the levels of sodium contained in Denny's meals. In particular, DeBenedetto alleges that:

Additionally, in anticipation of the arguments previously advanced by Denny's in its motion to dismiss DeBenedetto's first amended complaint, DeBenedetto's second amended complaint expressly disclaims any personal injury damages. Specifically, DeBenedetto's second amended complaint states that he "neither alleges nor seeks personal injury or any other form of damages..." and his claim is "limited strictly to equitable relief authorized by [the CFA]." Accordingly, DeBenedetto solely alleges economic damages under the CPA, including a refund of the purchase price of the meals he consumed and treble damages. In addition, DeBenedetto seeks a declaratory judgment that Denny's practices violate the CFA and an injunction requiring Denny's to disclose on its menus the amounts of sodium in its meals.

II. Motion to Dismiss Standard

Denny's brings its motion pursuant to Rule 4:6-2(e), contending that DeBenedetto's second amended complaint fails to state a claim upon which relief may granted. In addressing a motion to dismiss brought pursuant to Rule 4:6-2(e) a court's "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989). However, the court must search the complaint "`in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid, (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.Super. 244, 252, 128 A.2d 281 (App.Div.1957)). "Every reasonable inference is therefore accorded the plaintiff[.]" Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010); see also N.J Sports Prods., Inc. v. Bobby Bostick Promotions, LLC, 405 N.J.Super. 173, 177, 963 A.2d 890 (Ch.Div.2007).

In Banco Popular North America v. Gandi 184 N.J. 161, 165, 876 A.2d 253 (2005), the Court expressed the standard on such motions:

Thus, such motions are granted "only in the rarest of instances." Printing Mart-Morristown, supra, 116 N.J. at 772, 563 A.2d 31. "The plaintiffs obligation in order to defeat a motion to dismiss is `not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action.'" Schulman v. Wolff & Samson, P.C., 401 N.J.Super. 467, 473-74, 951 A.2d 1051 (App.Div.) (quoting Leon V. Rite Aid Corp., 340 N.J.Super. 462, 472, 774 A.2d 674 (App.Div.2001)), certif. denied, 196 N.J. 600, 960 A.2d 395 (2008).

By the same token, however, "[a] complaint may be dismissed for failure to state a claim if it fails `to articulate a legal basis entitling plaintiff to relief.'" Hoffman V. Hampshire Labs, Inc., 405 N.J.Super. 105, 112, 963 A.2d 849 (App.Div.2009) (quoting Sickles v. Cabot Corp., 379 N.J.Super. 100, 106, 877 A.2d 267 (App. Div.) (internal citations omitted), certif denied, 185 N.J. 297, 884 A.2d 1267 (2005)). Obviously, "if the complaint states no basis of relief and discovery would not provide one, dismissal is the appropriate remedy." Banco Popular, supra, 184 N.J. at 166, 876 A.2d 253. Specifically, "[a] motion to dismiss 'may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiff's claim must be apparent from the complaint itself.'" N.J. Sports Prods., Inc., supra, 405 N.J.Super at 178, 963 A.2d 890 (quoting Edwards v. Prudential Prop. & Cas. Co., 357 N.J.Super. 196, 202, 814 A.2d 1115 (App.Div.), certif denied, 176 N.J. 278, 822 A.2d 608 (2003)).

III. Plaintiffs CFA Claim is Subsumed by the Products Liability Act

The primary basis for Denny's motion to dismiss is that DeBenedetto's CFA claim is, in essence, a products liability claim for which the New Jersey Products Liability Act ("PLA"), N.J.S.A. §§ 2A:58C-1 to -11, affords an exclusive remedy. For the following reasons, the court opines that De-Benedetto's CFA claim is subsumed by the PLA.

In 1987 the Legislature enacted the PLA based on an "urgent need for remedial legislation to establish clear rules with respect to certain matters relating to actions for damages for harm caused by products." N.J.S.A. 2A:58C-la. Shortly after the PLA was enacted, the New Jersey Supreme Court declared that "[t]he Legislature intended ... to limit the liability of manufacturers so as to `balance [ ] the interests of the public and the individual al with a view towards economic reality.'" Zaza V. Marquess & Nell, Inc., 144 N.J. 34, 47-48, 675 A.2d 620 (1996) (quoting Shackil v. Lederle Labs., 116 N.J. 155, 188, 561 A.2d 511 (1989)). A products liability action is defined as "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-1b(3). Accordingly, the PLA is the exclusive remedy for harms caused by a product.

The New Jersey Supreme Court's decision in In re Lead Paint Litig., 191 N.J. 405, 924 A.2d 484 (2007) is instructive on the issue of whether a CFA claim is subsumed by the PLA.4 In Lead Paint, twenty-six municipalities and counties sought to recover, from manufacturers and distributors of lead paints, the costs of detecting and removing lead paint from homes and buildings, of providing medical care to residents affected with lead poisoning, and of developing programs to educate residents about the dangers of lead paint. Id. at 408-09, 924 A.2d 484. Although the complaints initially sought recovery through a wide variety of legal theories, the Court was called upon to consider only whether the plaintiffs had stated a cognizable claim based on the common law tort of public nuisance. Id. at 409, 924 A.2d 484. The Supreme Court held that the PLA encompasses "virtually all possible causes of action relating to harms caused by consumer and other products." Id. at 436-37, 924 A.2d 484.

The essence of the claims asserted by the plaintiffs in Lead Paint was that the defendants failed to warn of the dangers of lead paint. Id at 437, 924 A.2d 484. The Court noted that the harms plaintiff was seeking to vindicate are addressed in the context of a products liability claim:

Similarly, in McDarby v. Merck & Co., 401 N.J.Super. 10, 96-99, 949 A.2d 223 (App.Div.2008), the Appellate Division relied upon Lead Paint to vacate an award of out-of-pocket expenses, treble damages, and attorneys fees under the CFA because the plaintiffs' PLA claims subsumed their CFA claims. McDarby involved an appeal from a $15.7 million judgment on claims of product liability and consumer fraud arising from Merck's sale of the prescription drug Vioxx. The plaintiffs were able to recover additional economic loss pursuant to the CFA as a result Merck's alleged "unconscionable" commercial practices. Id. at 96, 949 A.2d 223. In overturning the award, the McDarby observed that "[a]s in Lead Paint plaintiffs' own arguments make it clear that what they are asserting is, at its core, that Merck failed to warn of dangers from a product of which it had knowledge, resulting m alleged economic harm to them." Id. at 97, 949 A.2d 223. The court further noted that the

Shortly after McDarby, the New Jersey Supreme Court again addressed the issue of whether the CFA is subsumed by the PLA in Sinclair v. Merck & Co., 195 N.J. 51, 948 A.2d 587 (2008). Sinclair involved a products liability action in which the plaintiff sought to recover the costs of medical monitoring without alleging a physical injury. The Court concluded that

Thus, consistent with Lead Paint and McDarby, the Court concluded that a plaintiff may not avoid the requirements of the PLA by asserting his claim as a CFA claim. Sinclair, supra, 195 N.J. at 54, 948 A.2d 587.

In the instant case, DeBenedetto seeks economic losses equal to the amount of money he spent on those meals that he would not have purchased had the sodium content been properly disclosed to him. DeBenedetto further states in his complaint that he "neither alleges nor seeks personal injury or any other form of damages..." However, DeBenedetto's second amended complaint sets forth that: (1) DeBenedetto "has hypertension" and that he takes medication "to treat his hypertension and high blood pressure ..."; (2) DeBenedetto "would not have purchased Moons Over My Hammy, or any other meal with 1,500 mg of sodium, if Denny's had disclosed this information to him at the point of sale"; (3) "The amount of sodium in a typical meal is extraordinarily high, especially compared to the advised daily limit of 1,500 mg of sodium for most American adults"; (4) "Not one single Denny's meal ... contains less than 500 mg of sodium ... [and] at least 75 percent of those meals contain more than the maximum amount of sodium most American adults should consume in an entire day." Indeed, DeBenedetto fails to identify any reason other than health concerns for avoiding excessive consumption of sodium. There would be no reason for DeBenedetto to have included these allegations in his second amended complaint if the essence of his complaint is not that he either suffered a physical injury or allegedly was put at risk of a physical injury from consuming food purchased at Denny's.5

In addition, DeBenedetto specifically incorporated into his second amended complaint a publication from the United States Centers for Disease Control and Prevention ("CDC").6 Among other statements, that document provides that: (1) "Greater consumption of sodium can increase the risk for hypertension;" (2) "Hypertension increases the risk for heart disease and stroke ... the first and third leading causes of death in the United States;" and (3) "[H]ealth-care providers should inform their patients of the evidence linking greater sodium intake to higher blood pressure."7 Thus, despite DeBenedetto's assertion to the contrary, his complaint is replete with allegations that sodium is dangerous and that it causes an increased risk of physical injury.

Further, a close reading of DeBenedetto's second amended complaint reveals that the essential nature of his allegations is that despite having knowledge of the detrimental effects of high levels of sodium, Denny's continues to market meals containing excessive sodium. Stated differently, the core of DeBenedetto's allegation is that Denny's has misrepresented the safety of its products by failing to warn plaintiff of its dangers. Indeed, De-Benedetto specifically alleges that "the Denny's restaurant menu deceptively presents various items as single meals to be consumed by one individual without disclosing that these meals contain substantially more sodium ... than the maximum recommended amount for all meals consumed by an individual in an entire day." "This classic articulation of tort law duties, that is, to warn of or to make safe, is squarely within the theories included in the PLA." Lead Paint, supra, 191 N.J. at 437, 924 A.2d 484. Accordingly, because the core of DeBenedetto's second amended complaint is that Denny's failed to adequately warn consumers of the dangerous levels of sodium in its meals, his exclusive remedy is the PLA.

DeBenedetto argues at length that the instant matter is distinguishable from the Sinclair and McDarby cases because both cases involved claims by persons who ingested the prescription drug Vioxx and then asserted claims based on the actual or increased risk of physical injury suffered as a result of ingesting Vioxx. DeBenedetto contends that because he seeks relief based solely upon economic losses he sustained in purchasing, rather than consuming, Denny's meals, the CFA should not be subsumed by the PLA. DeBenedetto's analysis, however, unduly limits the holdings in Sinclair and McDarby.

In McDarby the Appellate Division reversed the trial court's decision to allow recovery for the purchase price of a product pursuant to the CFA, reasoning that "[a]lthough the cause of action under the CFA asserted by plaintiffs in the present matter differs from the public nuisance theory espoused by the plaintiffs in the Lead Paint litigation, we can discern no reason to distinguish the two actions on that ground." McDarby, supra, 401 N.J.Super. at 97, 949 A.2d 223. Thus, the label plaintiff gives to the cause of action does not control whether it is subsumed by the PLA. In the present matter, as in McDarby, the alleged entitlement to damages depends on an underlying allegation that the product at issue puts customers at increased risk of injury—in McDarby the plaintiffs sought to recover the costs of the product (medication), and here, DeBenedetto seeks to recover the costs of the product (food). The court is simply not persuaded that DeBenedetto's strategic omission of an express allegation of personal injury renders McDarby inapplicable to this case. Moreover, the Lead Paint Court found that the plaintiffs nuisance claim was subsumed by the PLA despite the fact the plaintiffs did not include an underlying PLA count. See In re Lead Paint, supra, 191 N.J. at 409, 436-39, 924 A.2d 484. These opinions are consistent with the PLA, which defines a products liability action to include harms caused by products "irrespective of the theory underlying the claim." N.J.S.A. 2A:58C-1b(3).

DeBenedetto additionally relies on Strawn v. Canuso, 140 N.J. 43, 657 A.2d 420 (1995). In Strawn, the Court held that a builder-developer of new homes had a duty to disclose to prospective buyers that the homes were constructed near an abandoned hazardous-waste dump under the CFA. Id. at 48-49, 657 A.2d 420. De-Benedetto maintains that, like the plaintiff in Strawn, he is alleging that a seller (Denny's) concealed material information about a product (the sodium levels in its food) that would affect the health and safety of a buyer (DeBenedetto). However, Strawn was decided pre-Lead Paint, McDarby, and Sinclair, and therefore does not address the main issue before the court whether the PLA subsumes plaintiffs CFA claim.8 Accordingly, the fact that a pre-Lead Paint, Sinclair, and McDarby case held that a seller had a duty to disclose information in a real estate transaction has no bearing on whether the alleged harm from a food product is actionable under the CFA.

DeBenedetto similarly suggests that Real v. Radir Wheels, Inc., 198 N.J. 511, 969 A.2d 1069 (2009), would permit his claim to survive. Radir Wheels involved an out-of-state buyer of an automobile by way of an Internet auction filing a CFA action against an in-state seller. Id. at 514, 969 A.2d 1069. The defendant seller argued that the CFA claim should be dismissed because the allegations should properly have been brought under New Jersey's Used Car Lemon Law. Id. at 525-26, 969 A.2d 1069. The trial court ruled that the CFA was a proper avenue for plaintiff to pursue his claims and denied the defendant's motion to dismiss. Id. at 526, 969 A.2d 1069. However, the Radir Wheels Court specifically noted that the Used Car Lemon Law provides that "[n]othing in this act shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law." Ibid. Moreover, the Court acknowledged that "by its own explicit terms, the Used Car Lemon Law was never intended to substitute for the CFA; on the contrary, it is additive, intended to supplement the CFA's 'rights and remedies.'" Ibid. This language is in direct contrast to the PLA, which is intended to be "the sole source of remedy for plaintiffs' defective product claim ..." Sinclair, supra, 195 N.J. at 66, 948 A.2d 587. In light of these differences between the PLA and the Used Car Lemon Law, Radir Wheels is inapposite to DeBenedetto's position.

DeBenedetto's reliance on Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 695 A.2d 264 (1997) is also misplaced. Alloway involved an exception to the rule that the PLA subsumes products liability-based CFA claims. In Alloway, the plaintiff filed suit following the sinking of a boat and sought recovery for the economic loss to the boat itself under tort-based theories. Alloway, supra, 149 N.J. at 624, 695 A.2d 264. The plaintiff, however, did not allege that anyone sustained personal injuries. Ibid. After a thorough review of both state and federal law, the Court concluded that the plaintiffs tort claims were barred. Id. at 642, 695 A.2d 264. The Court reasoned that "[b]y providing for express and implied warranties, [the] U.C.C. amply protects all buyers—commercial purchasers and consumers alike—from economic loss arising out of the purchase of a defective product." Ibid. DeBenedetto contends that in light of the Court's recognition of the separate functions of tort law and contract and consumer protection law, there is no basis for finding a conflict between the application of the CFA and the PLA.9 However, Alloway explicitly did not "resolve the issue [of] whether tort or contract law applies to a product that poses a risk of causing personal injuries or property damage but has caused only economic loss to the product itself." Id. at 639, 695 A.2d 264. Indeed, unlike the instant case, which, at a minimum, involves allegations that a product poses potential health risks, there was no allegation in Alloway that the boat posed a risk of personal injury. Id. at 624, 695 A.2d 264. Further, the very question that the Court in Alloway declined to resolve was addressed subsequently in Lead Paint, Sinclair, and McDarby—all of which, in this court's opinion, suggest that DeBenedetto's claims are subsumed by the PLA.

Ultimately, DeBenedetto's strategic decision to exclude personal injury allegations from his second amended complaint does not change the fact that his complaint, at its core, alleges that Denny's failed to warn him of the inherent dangers of consuming excessive amounts of sodium. Indeed, DeBenedetto's second amended complaint again alleges that sodium is dangerous and that it carries an increased risk of injury, allegations that fit squarely within the exclusive purview of the PLA. Further, DeBenedetto has acknowledged repeatedly that he suffered no physical injury as a result of purchasing and consuming food at Denny's.10 Thus, insofar as DeBenedetto concedes that his injury is purely economic, his claims cannot survive.11

IV. Conclusion

The allegations set forth in DeBenedetto's second amended complaint are based on a theory of products liability; thus, DeBenedetto's CFA claims are subsumed by the PLA The PLA requires physical injury to sustain a claim and DeBenedetto contends that he has suffered no physical injury as a result of purchasing and consuming food at Denny's. Thus, since there is no basis by which DeBenedetto can remedy his deficient pleading, his claims are dismissed with prejudice.