Newmark went to Gimbel's
beauty parlor. The beautician applied some hair product that caused all
of Newmark's hair to fall out. Newmark sued for product liability.
The product had a warning,
but the beautician never showed the warning to Newmark or asked her
questions about her sensitivity to the product.
The Trial Court found for
Gimbel's. Newmark appealed.
Newmark argued that the
product was defective since there was an implied warranty that it
was safe.
The Trial Court found that
Gimbel's was rendering a service, not making a sale. Therefore any
product liability claims are not applicable.
The doctrine of strict
liability only applies to defective products, not defective
services.
The Appellate Court reversed.
Gimbel's appealed.
The Appellate Court found
that there might be an implied warranty for the product itself.
The New Jersey Supreme Court
affirmed the Appellate Court's decision and remanded for trial.
The New Jersey Supreme Court
noted that if Newmark had bought the product in a store and applied it
herself, there is no question she would have a claim of product
liability based on an implied warranty.
Gimbel's not only sold
Newmark the product, they also applied it! So if anything, their
liability for the product should increase rather than decrease.
The New Jersey Supreme Court
suggested that Gimbel's should sue the manufacturer of the product, who
should bear the primary responsibility.
The Court suggest that there
was a difference between service providers like beauticians, who provide
optional, and doctors, who provide essential services. Essential service
providers should not be held strictly liable.
This case is a good example of
a hybrid transaction, that's a combination of a service and a
product.
You can't be held strictly
liable for providing a service. For example, a doctor that treats a
patient who dies is not strictly liable, they are only liable if
you can prove negligence. (See Restatement of Torts §19(b)).
But you can be held strictly
liable for providing a defective product. You don't need to show negligence.
In this case, the Court found
that in a hybrid transaction one can be held strictly liable.
