Careful with the Green Salsa, Says Federal Judge

"The green salsa, which Mr. Manz admitted he never sampled, smelled, or asked an employee regarding the contents before consuming, is the source of this litigation."

From Manz v. LTN1 Times Square, LLC, decided Feb. 17 by Judge Dale Ho (S.D.N.Y.):

Plaintiff Faycal Manz, proceeding pro se, alleges he suffered severe physical and emotional injuries, including burns and GI distress, as a result of unknowingly consuming excessively spicy salsa at Los Tacos No. 1's Times Square location….

On his trip, [Manz] visited the Times Square location of Los Tacos. Mr. Manz states that, as a German, he had never eaten tacos before, and he wished to try the acclaimed tacos offered at Defendant's establishment. Mr. Manz went to the counter and purchased three tacos. Los Tacos has a self-service salsa bar, featuring various types of salsas with different ingredients and spice levels. At the bar, Mr. Manz proceeded to put hefty portions of salsa on top of all three tacos: two receiving a "red" salsa, and the third a "green" salsa. The green salsa, which Mr. Manz admitted he never sampled, smelled, or asked an employee regarding the contents before consuming, is the source of this litigation.

Mr. Manz claims that after a single bite of the third taco, he immediately began suffering severe physical symptoms. He alleges that his tongue burned, his mouth hurt, his face turned red, and his heart rate soared. He also alleges that he suffered severe GI distress and mouth sores that lasted for days. He tried to wash down the spice with a coke and later some ice cream, to no avail. He then returned to his hotel, where he took over-the-counter medicine for diarrhea, acid reflux, and stomach cramps that he brought with him on the trip.

Mr. Manz called his wife to report the ordeal. He also immediately took many photos of the restaurant and his tongue, purporting to document his symptoms. However, he never told anyone else of the incident, including people at the restaurant. Nor did he seek medical attention, either in the United States, or upon returning home to Germany. Manz continued with his trip as planned, attended the U.S. Open, and ate meals as normal without issue for the remainder of the trip.

According to Los Tacos, no one has ever complained about the spice level of their various salsa offerings until Mr. Manz. But he claims he is particularly vulnerable. Mr. Manz had a pre-existing sensitive gastrointestinal tract and "spice intolerance." In 2010, Mr. Manz even underwent a colonoscopy after experiencing diarrhea and was advised that he had had a reaction to excessively spicy food. He accordingly generally avoids spicy foods at home. But even though Mr. Manz knew that he should avoid "[t]oo spicy hot" foods, he nonetheless went to Los Tacos and placed multiple helpings of salsa on all of his tacos….

Mr. Manz has failed to state a claim that Los Tacos negligently served excessively spicy salsa at the Times Square location…. Where a negligence case stems from allegations of a food product, a plaintiff must prove that the product served "exceeded the reasonable or customary standards for such a product." Only then does a business have a duty to warn a consumer of the abnormal nature of the product. A food provider is not liable for injuries resulting from "some allergy or other personal idiosyncrasy of the consumer, found only in an insignificant percentage of the population."

While the Court is unaware of any direct application of this body of law to spicy foods generally, or to Mexican food or salsa specifically, the Court concludes that the logic of parallel cases applies here. As Los Tacos argues, Mexican food, and more specifically, salsa, is often spicy. In fact, when it comes to salsa, the spice is often the point. Generally speaking, a food purveyor cannot be liable for negligence under New York law for injuries resulting from an idiosyncratic characteristic of the consumer, so long as the purveyor's products fall within the norm for products of their nature…. [W]here there is evidence that the Los Tacos's salsa bar was abnormally spicy as compared to other salsas or Mexican food, there is no duty to warn a consumer of the spice-associated risks that come with consuming salsa.

Further, Mr. Manz's evidence is entirely lacking in this regard. The only evidence he puts forward is his personal testimony regarding injuries suffered from consuming the salsa. He provides no evidence of anyone else having suffered an injury from or complained about consuming Los Tacos's salsa. Mr. Manz also provides no expert evidence to demonstrate, for example, that the spice levels at Los Tacos's salsa bar were higher than those of other similar restaurants, or to establish causation for his injuries.

He also provides no evidence whatsoever as to what might be the reasonable standard of care for spicy food. Even if he had established a standard of care, he admits that he never asked an employee about the spice of the salsa, and that he never sampled the salsa before placing a significant helping on each of his tacos. The only evidence regarding the level of spice at Los Tacos in the record—unauthenticated online review photos indicating that the salsa bar used to indicate spice levels on the various salsas—demonstrates that the red salsa with which he had no issue was marked "SPICY," while the green salsa was marked "MEDIUM." Without any admissible testimony as to reasonable care or spice level, no jury could conclude that Los Tacos had a duty to warn Mr. Manz of the inherent spice present in their salsa….

Section 349 (a) of the [N.Y.] General Business Law declares as unlawful "[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state," with no further elaboration of the prohibited conduct…. "In the case of omissions in particular," the New York Court of Appeals has cautioned that § 349 "surely does not require businesses to ascertain consumers' individual needs and guarantee that each consumer has all relevant information specific to its situation." Accordingly, a plaintiff bringing an omission-based claim for § 349 liability must show that "the business alone possesses material information that is relevant to the consumer and fail[ed] to provide this information," or that plaintiffs could not "reasonably have obtained [through ordinary diligence] the relevant information they now claim the [defendant] failed to provide." …

Mr. Manz has not established that he could not have obtained information about the spice level present in Los Tacos's salsa. Mr. Manz admits that he never asked anyone, whether a customer or a Los Tacos employee, about the contents of the salsa bar before putting a large amount on each of his tacos.

A quick google search for "Mexican food," "salsa," or even Los Tacos reviews likely would have revealed that salsa can be quite spicy. For example, the online reviews that Mr. Manz seeks to admit to the record indicate that several users commented on the spice level at Los Tacos. Mr. Manz also admits that he is particularly predisposed to spice-related ailments and admits that, as a result, he generally avoids spicy food at home. A reasonable person with Mr. Manz's characteristics could have easily discovered that the salsa at Los Tacos was spicy. Accordingly, Mr. Manz's claim under GBL § 349 fails….

Thanks to The Guardian (Anna Betts) for the pointer.

Anthony Bianchi (Law Offices of Shahab Katirachi) represents defendant.