Newmark v. Gimbel's Incorporated
6 U.C.C. Rep. Serv. (West) 1205, 54 N.J. 585, 258 A.2d 697 (1969)
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Rule of Law:
When a commercial service provider furnishes and applies a product to a patron as part of the service, an implied warranty of fitness applies, and the provider may be held strictly liable in tort for injuries caused by a defect in the product.
Facts:
- Mrs. Newmark was a regular patron at a beauty parlor operated by Gimbel’s Inc.
- On November 16, 1963, Newmark went to the salon for a permanent wave.
- The operator, William Valante, recommended a specific permanent wave for her fine hair, and Newmark relied on his judgment in agreeing to the treatment.
- Valante applied a permanent wave solution marketed as “Helene Curtis Candle Wave” to Newmark's hair.
- During the application, Newmark complained of a burning sensation on her scalp.
- The burning persisted, and that evening her head became red and blistered.
- Following the incident, a significant amount of Newmark's hair fell out.
- A dermatologist diagnosed Newmark with contact dermatitis of the scalp and hair loss, concluding that the permanent wave solution was the sole cause.
Procedural Posture:
- Plaintiffs Newmark sued defendants Gimbel's Inc. in a county district court, alleging negligence and breach of warranty.
- At the conclusion of the trial, the trial court judge dismissed the warranty counts as a matter of law, ruling the transaction was a service, not a sale.
- The negligence claim was submitted to the jury, which returned a verdict for the defendants.
- Plaintiffs, as appellants, appealed the dismissal of the warranty counts to the Appellate Division.
- The Appellate Division reversed the trial court, holding that a fact issue existed for the jury regarding an implied warranty.
- Defendants, as appellants, petitioned for certification to the Supreme Court of New Jersey, which granted the petition.
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Issue:
Does an implied warranty of fitness attach to products used in a commercial service transaction, such as a permanent wave given at a beauty parlor, holding the service provider strictly liable for injuries caused by a defective product?
Opinions:
Majority - Francis, J.
Yes, an implied warranty of fitness attaches to products used in such a hybrid sales-service transaction. The court found that the distinction between a sale and a service is artificial in this context. If the permanent wave lotion had been sold to Mrs. Newmark for home use, an implied warranty would have unquestionably applied. The court reasoned there is no just cause to eliminate that warranty simply because the salon operator also applied the product. The transaction is a hybrid, partaking of incidents of both a sale and a service, and the policy reasons for imposing strict liability in sales cases are equally applicable here. The patron relies on the operator's expertise and selection of the product, making the operator a crucial part of the marketing enterprise that should bear the cost of injuries from defective products. The court distinguished this commercial enterprise from the professional services of doctors or dentists, whose primary function is to provide judgment and opinion in the vital interest of public health, not to act as retailers of products.
Analysis:
This decision significantly expanded the scope of strict products liability by extending it beyond pure sales to hybrid transactions involving both a service and a product. It established that commercial service providers can be held liable as part of the product's distributive chain. The case is notable for creating a distinction between commercial services (like a beautician) and professional services (like a doctor or dentist), exempting the latter from strict liability based on public policy. This distinction has become a critical point of analysis in subsequent cases involving injuries caused by products used in the course of providing services.
