Levis v. Zapolitz

• Decision Date: 06 February 1962
• Docket Number: No. A--170,A--170
• Citation: 72 N.J.Super. 168,178 A.2d 44
• Parties: Gerard LEVIS, an infant by his Guardian ad litem, Margaret Levis, and Margaret Levis, individually, Plaintiffs-Appellants, v. George ZAPOLITZ, trading as Gale Sales Co., and Lester Stein and Allen Settel, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 168

72 N.J.Super. 168

178 A.2d 44

Gerard LEVIS, an infant by his Guardian ad litem, Margaret Levis, and Margaret Levis, individually Plaintiffs-Appellants, v. George ZAPOLITZ, trading as Gale Sales Co., and Lester Stein and Allen Settel, Defendants-Respondents.

No. A--170.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 9, 1961.

Decided Feb. 6, 1962.

Leonard J. Felzenberg, Newark, for appellant (Roskein, Kronisch, Felzenberg & Mandell, Newark, attorneys).

Michael Howard, Newark, for respondent George Zapolitz.

Sidney D. Weiss, Woodbridge, for respondents Lester Stein and Allen Settel (William Osterweil, Newark, attorney).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

This is an appeal from a dismissal of plaintiffs' complaint by the Law Division on the grounds, as stated in the order, of failure 'to state a claim upon which relief can be granted and that there is no genuine issue as to any material fact.'

On June 21, 1958 plaintiff Gerard Levis, then 15 years of age, was struck in the right eye by part of a toy sling shot, an arm of which had broken off as he was using it. The sling shot had been purchased on the preceding day by his brother Joseph Levis, aged 12, from the defendants Stein and Settel, who operated a store at 75 Avon Avenue, Newark. The trauma resulted in permanent injury to the plaintiff's eyesight.

Suit alleging negligence was brought by the plaintiff's mother, as his guardian Ad litem and individually, against Stein and Settel, the retailers, and also against George Zapolitz, the jobber or wholesaler from whom they had purchased the sling shot. The manufacturer was not joined.

Zapolitz had purchased a gross of the toy sling shots from a distributor for $7.20 and had sold one dozen to Stein and Settel for 72 cents. He delivered the order in the original packaging and conceded that he had made no inspection or test of the sling shots. Likewise, no inspection or test was made by or on behalf of either Stein or Settel (although the contrary had been originally asserted in the answers to interrogatories served by them).

The appendix tells us very little as to the nature or extent of the defect which brought about the break. The sling shot was a plastic toy. A rubber band attached to the arm was the propelling force. The purchase price was ten cents. One of the arms was claimed to have broken off due to a defect in manufacturing. At the oral argument it was conceded by plaintiff that the defect which allegedly brought about the break was internal and not one which could have been detected by visual inspection.

Pursuant to leave granted in the pretrial order, defendants filed a joint motion to dismiss the complaint for failure to state a claim upon which relief can be granted. R.R. 4:12--2. At the conclusion of the hearing on the motion, the trial judge stated:

'It seems to me the only theory upon which the plaintiff can rely in this case is the failure to inspect; that the duty was on both of them to inspect; and that an inspection would have revealed this defect.

I am going to hold that there is no duty to inspect here and grant both your motions.'

The plaintiffs treat the trial court's order as one for summary judgment under R.R. 4:58--3, and their brief seeks to point out various factual issues assertedly raised by the pleadings, pretrial order and interrogatories, which merited a jury trial. The order of the trial court leaves it uncertain whether the matter was being disposed of on the basis of insufficiency of the complaint alone, R.R. 4:12--2, or of the complaint and the other matters of record taken together, R.R. 4:58--3. This is of no consequence, however, as we view the case as presenting only an issue of law.

The complaint alleged that defendants, in selling the sling shot, were violating N.J.S. 2A:151--2, 10 and 12, N.J.S.A. (which prohibit the manufacture or sale of certain enumerated weapons including a 'slung shot'). The court held to the contrary, and this contention is not pressed on appeal. The other grounds of liability asserted were that the defendants were negligent 'in selling a dangerous instrumentality to a minor * * *; and permitting a minor to obtain possession of a dangerous instrumentality when inexperienced in the handling of sling shots' and in '* * * failing to discover that the said sling shot was not properly manufactured * * *.' Defendants deny that the sling shot was a dangerous instrumentality and deny any duty of inspection.

Initially, the plaintiffs urge that a plastic sling shot is not a proper article to be sold as a toy to a child. Since it would be reasonable to assume that children are the basic users of toys of this type, plaintiffs' argument would, in effect, exclude them from the market altogether. We are unable to agree nor is the claim presently made that the accident occurred as the result of the youth or inexperience of the infant plaintiff. The same experience could have befallen an adult using the sling shot in the usual manner. The asserted proximate cause of this injury was the breaking of one of the arms of the sling shot as it was being used, due to an alleged defect which was not observable upon visual inspection, which caused a part to snap back and strike plaintiff's eye. The question presented is, therefore, whether there was a duty incumbent upon the defendants, or one or more of them, to inspect the sling shot for latent defects of this character.

It is urged that the sling shot was an inherently dangerous instrument and that this fact called for an inspection of the type stated. However, any danger 'inherently' involved stems from the normal use of the article, not from its potential collapse in use. We have found no applicable decision which supports the contention that a plastic sling shot is inherently dangerous. We note, moreover, a number of well considered cases concerned with articles analogous to a sling shot which have held the contrary to be true. Miller v. Sears, Roebuck & Co. of Illinois, 250 Ill.App. 340 (App.Ct.1928) (toy spark pistol); White v. Page, (bow and arrow), 105 N.E.2d 652 (Ohio Ct.App.1950); cf. Harris v. Cameron, 81 Wis. 239, 51 N.W. 437 (Sup.Ct.1892) (BB gun); Chaddock v. Plummer, 88 Mich. 225, 50 N.W. 135, 14 L.R.A. 675 (Sup.Ct.1891) (air gun); Crist v. Art Metal Works, 230 App.Div. 114, 243 N.Y.S. 496 (App.Div.1930) (dissenting opinion), affirmed 255 N.Y. 624, 175 N.E. 341 (Ct.App.1931) (toy spark pistol). In Herman v. Markham Air Rifle Co., 258 F. 475 (E.D.Mich.1918), a suit against a manufacturer of air rifles, it was held that an air rifle was 'an article inherently and imminently dangerous.' That case is clearly distinguishable. There the manufacturer had delivered for resale a loaded air rifle. Neither the wholesaler nor retailer knew of the hazard, and when the rifle was discharged by a customer in the retailer's store, the pellet struck the plaintiff, an employee. The court held that the Loaded air rifle was inherently and imminently dangerous. In Mazzocchi v. Seay, 126 W.Va. 490, 29 S.E.2d 12 (Sup.Ct.1944), an air rifle was held not to be inherently dangerous.

We cannot agree that the plastic sling shot here involved was an inherently dangerous article. As noted above, to be inherently dangerous the danger of injury must stem from the nature of the article itself and not from any defect therein. 74 A.L.R.2d 1111, 1146 (1960).

Plaintiffs rely upon Heckel v. Ford Motor Co., 101 N.J.L. 385, 128 A. 242, 39 A.L.R. 989 (E. & A. 1925) and MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (Ct.App.1916), to sustain their contention that the trial court erroneously determined that the defendants were under no obligation to make an inspection of the sling shot in the present case. But in each of these cases the defendant was the manufacturer who had assembled the product for resale. The rule is well settled that the manufacturer of a product is under the duty of making an inspection for the purpose of locating latent or patent defects which could be ascertained by the exercise of reasonable care on its part. Sinatra v. National X-Ray Products, 26 N.J. 546, 553, 141 A.2d 28 (1958); Heckel v. Ford Motor Co., supra. The same obligation has been imposed upon an exclusive distributor which actually assembles, installs and services a product. Sinatra v. National X-Ray Products, supra, 26 N.J. at p. 553, 141 A.2d 28. The question to be determined, however, is whether the same obligation devolves upon the vendor of a toy where the alleged defect was latent and there is no allegation that the vendor knew or should have known of the defect.

The general rule followed in the majority of states is, excluding certain exceptions not here relevant, that a retailer, as distinguished from a manufacturer, is under no obligation to test or examine articles manufactured by another for the purpose of discovering latent defects therein. Restatement, Torts (1948 Supp.), sec. 402 and text following; Prosser, Torts (2d ed. 1955), sec. 83, p. 492; 2 Harper & James, Torts (1956), sec. 28.29, p. 1597; 46 Am.Jur., Sales, sec. 805, p. 930. Plaintiffs contend, however, that in New Jersey it has been held that when dealing with an item which, if negligently made, could be dangerous when applied to its intended use in the usual and customary manner, a vendor is charged with the same duty as a manufacturer, citing O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 99 A.2d 577 (1953). There it was held that the defendant supplier of a hook was under the duty of exercising 'reasonable care in placing it on the market.' What was reasonable care was said to depend upon the facts of the case. 'The test is whether on the facts of the particular case reasonable care would discover the latent defect * * *. And in determining the amount of inspection necessary the dangerous propensities of ...