Newmark v. Gimbel's, Inc.

Superior Court of New Jersey, Appellate Division · 1968 · Torts

TortsImplied WarrantyProducts LiabilityServices vs. Salesimplied warrantyfitness for purposemerchantabilitybeauty parlor

Facts

Mrs. Newmark, a regular customer at defendant's beauty parlor, asked about a permanent wave and was told by defendant's beauty technician that because of her fine hair she needed a "good" permanent wave rather than the sale permanent. Defendant selected and applied the permanent wave solution and related products, after which Mrs. Newmark experienced burning on her scalp during the treatment. Her forehead later became red and blistered, her hair fell out in unusual amounts, and her dermatologist diagnosed contact dermatitis causally related to the hair solution with resulting hair loss. The record also showed the product came with precautionary instructions warning the operator to make sure the patron's hair and scalp were in condition to receive a cold wave and to ask about prior sensitivity.

Issue

Whether warranty principles permit recovery against a beauty parlor operator for injuries caused by a product the operator selected and furnished in the course of giving a permanent wave, even though the overall transaction included services. Also, whether the evidence was sufficient to permit a jury to find breach of implied warranty, and whether the statement that plaintiff needed a "good" permanent wave created an express warranty.

Rule

Implied warranty liability is not confined to technical sales under the Uniform Commercial Code. When, in a commercial transaction, a business supplies a product for the customer's use and that product is intended to be consumed or used up as part of the finished result, the transaction carries an implied warranty that the product is reasonably fit for its intended purpose; and in New Jersey, the fact that only a small proportion of users would suffer injury does not defeat implied warranty liability.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a skin-care studio in Seattle, Nora Kim paid for a facial treatment. The technician selected and applied a chemical peel solution that was fully used during the treatment, and Nora later developed severe facial irritation allegedly caused by the solution.

If Nora sues the studio, which argument best supports allowing her implied warranty claim to go to the jury?

Explanation. The majority held that implied warranty is not confined to technical sales. When, in a commercial transaction, a business supplies a product for the customer's use and that product is intended to be consumed or used up as part of the finished result, the transaction carries an implied warranty that the product is reasonably fit for its intended purpose. That reasoning supports submission of Nora's implied warranty claim to the jury. (Derived from Newmark v. Gimbel's, Inc. (n.d.).)