Products Liability Law Daily Wrap Up, STATUTES OF LIMITATIONS AND REPOSE—FOOD AND BEVERAGES—N.J. Super. App. Div.: Deli owner wins dismissal of consumer’s claims in salad-induced illness case, (Mar 20, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

The consumer’s personal-injury claims were time-barred under the two-year statute of limitations outlined in New Jersey’s Product Liability Act.

In a case brought against a deli owner by a man who allegedly contracted a bacterial infection from a contaminated salad ordered from the deli, the New Jersey Appellate Division affirmed the trial court’s grant of summary judgment, finding that the two-year personal-injury statute of limitations applied rather than the four-year limitations period given in the Uniform Commercial Code for warranty claims. New Jersey’s Product Liability Act’s (PLA) exclusion of express-warranty claims did not alter this analysis because the gravamen of the man’s claims was personal injury from a defective product rather than contractual breach of express warranty, and the law-of-the-case doctrine did not bar reconsideration of the limitations issue since the prior ruling was interlocutory (Cappello v. Cicchetti, LLC, No. A-1341-24 (N.J. App. Div. Mar. 17, 2026)).

Background. On November 9, 2018, a man ordered a takeout Mediterranean salad with romaine lettuce from Cicchetti, LLC d/b/a Il Panino Italian Deli and Catering Restaurant, also d/b/a My Way Deli (Cicchetti or deli). He fell sick after consuming the salad and was hospitalized, where he tested positive for E. coli bacteria and underwent surgery. He underwent additional surgeries in June and September 2020 and suffered permanent loss of his colon along with life-altering changes to his lifestyle. On November 7, 2022—nearly four years after the incident—he brought suit against Cicchetti, alleging breach of express and implied warranties (merchantability and fitness for particular use) based on the deli’s representations that its salads were fit for human consumption, the “best” in town, and made with the finest homemade ingredients. He claimed reliance on those representations and sought damages for his injuries as a direct and proximate result of the breaches.

Prior proceedings. Cicchetti moved to dismiss under Rule 4:6-2(e), arguing that the two-year personal-injury statute of limitations barred the action. A judge denied the motion, finding that the pleaded express-warranty claim was facially subject to the four-year Uniform Commercial Code (UCC) period and reserving other arguments for later motions. The deli then moved for summary judgment, joined by third-party defendants Restaurant Depot and D’Arrigo Bros. A second judge granted summary judgment, concluding that the claims were time barred since "the applicable statute of limitations is governed by the gravamen of the injury rather than the strict wording of the pleading," per Heavner v. Uniroyal, 63 N.J. 130, 156 (1973), and the gravamen here was a personal injury governed by the two-year Product PLA limit. Further, since the prior judge’s determination was made under the motion to dismiss standard, he could not give preclusive effect to that ruling under the theories of res judicata and/or collateral estoppel. The consumer appealed, arguing that the second judge applied the wrong statute of limitations, that Heavner predated the PLA, that the reasoning blatantly contradicted the language of the UCC which was invalidated by the PLA, and that the law of the case doctrine barred the second judge from granting summary judgment since the first judge denied the deli’s motion on the same grounds.

Legal standard. "It is well settled that '[a]ctions for personal injuries must be commenced within two years after the cause of action accrues.'" Barron v. Gersten, 472 N.J. Super. 572, 577 (App. Div. 2022). The N.J.S.A. 2A:14-2(a) provides that, "every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued[.]" Under the UCC, "[c]onsequential damages resulting from the seller's breach include... injury to person or property proximately resulting from any breach of warranty” and an “action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." N.J.S.A. 12A:2-715(2)(b). In Heavner, this apparent tension between the two was resolved that the UCC language —”[a]n action for breach of any contract for sale”—could not apply to a consumer-user action for consequential personal injury and property damage, and instead, "such actions are governed... by our general statutes of limitation."

Timeliness. This court applied Heavner’s long-standing rule that the UCC four-year period does not govern consumer-user actions for consequential personal injury and instead, the general two-year limit under N.J.S.A. 2A:14-2(a) controls when the gravamen is a defect in the article causing such harm, regardless of how the claim is pleaded. The Legislature’s subsequent adoption of the PLA which excludes express-warranty claims did not alter the consumer’s obligation to file suit within two years, as he sought recovery for personal injury proximately caused by the allegedly contaminated salad. Since the instant complaint was filed nearly four years after the November 9, 2018, injury, it was untimely and summary judgment was properly granted to Cicchetti.

Doctrine. The man argued that under the law-of-the-case doctrine, courts are barred from reconsidering legal issues already decided in earlier stages of a case, except where that decision was clearly erroneous. Bedrosian v. U.S. Dep't Treasury Internal Revenue Serv., 42 F.4th 174, 181 (3d Cir. 2022). The court explained that the doctrine is discretionary in nature per Lombardi v. Masso, 12 A-1341-24 207 N.J. 517, 538-39 (2011) and does not bind a court to an interlocutory ruling, especially where the prior judge reserved arguments and the motion standards differed (Rule 4:6-2(e) vs. Rule 4:46-2(c)). The first denial was not a merits adjudication requiring adherence, and the second judge properly declined to give it preclusive effect under res judicata or collateral estoppel. Accordingly, the second judge did not abuse his discretion in reconsidering the limitations issue.

The case is No. A-1341-24.

Judge: Per curiam.

Attorneys: Amanda E. Quinlan (McLane Middleton, PA) for Anthony Cappello. Robert T. Gunning (Morrison Mahoney, LLP) for Cicchetti, LLC.

Companies: Cicchetti, LLC

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