Magrine v. Spector, A--973

• Decision Date: 02 April 1968
• Docket Number: No. A--973,A--973
• Citation: 241 A.2d 637,100 N.J.Super. 223
• Parties: Frances MAGRINE and Alfred Magrine, Plaintiffs-Appellants, v. David SPECTOR, d/b/a Precision Bur Company and E. P. Keane, indiv. and t/aKeane Dental Supply, Defendants. Vincent KRASNICA, Defendant-Respondent, Third-Party Plaintiff, v. David SPECTOR, d/b/a Precision Bur Company and E. P. Keane, indiv. and t/aKeane Dental Supply, Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 223

100 N.J.Super. 223

241 A.2d 637

Frances MAGRINE and Alfred Magrine, Plaintiffs-Appellants, v. David SPECTOR, d/b/a Precision Bur Company and E. P. Keane, indiv. and t/aKeane Dental Supply, Defendants.

Vincent KRASNICA, Defendant-Respondent, Third-Party Plaintiff, v. David SPECTOR, d/b/a Precision Bur Company and E. P. Keane, indiv. and t/aKeane Dental Supply, Third-Party Defendants.

No. A--973.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 18, 1967.

Decided April 2, 1968.

Lewis M. Holland, Jersey City, for appellants (Warren, Chasen, Leyner & Holland, Jersey City, attorneys).

Geoffrey Gaulkin, Newark, for respondent (Beggans & Keale, Jersey City, attorneys).

Before Judges KILKENNY, CARTON and BOTTER.

PER CURIAM.

Plaintiff-patient Frances Magrine brought action against defendant-dentist to recover for personal injuries sustained when a latently defective hypodermic needle broke or separated while it was being injected into her gum by defendant. Plaintiff Alfred Magrine sought to recover derivative damages.

The pertinent facts are set forth in Judge Lynch's opinion, reported sub. nom. Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539 (Cty.Ct.1967).

The stipulation of facts upon which the case was submitted included the following: Plaintiff makes no assertion or claim that defendant failed to do what a reasonably prudent person would have done under the circumstances or that defendant did what a reasonably prudent person would not have done. Plaintiff relies upon strict liability, breach of warranty and breach of contract to recover.

Judge Lynch, in an opinion in which he carefully reviewed the recent developments of the doctrine of strict liability and analyzed various policy decisions involved, concluded that judgment should be entered for defendant. Plaintiffs appeal.

The sole issue presented here is whether a dentist is strictly liable to a patient injured by a defective instrument used in the course of treatment. In our opinion, the imposition of liability on the defendant-dentist cannot be justified on the basis of any of the accepted policies which underlie the doctrine of strict liability as it is presently understood. Nor are we persuaded that that doctrine should be extended under the circumstances of this case so as to render the defendant-dentist liable without fault for a defect in a needle which he merely purchased and used.

The judgment appealed from is therefore affirmed.

BOTTER, J.S.C. (temporarily assigned) (dissenting):

The case comes up on a stipulation of facts. 94 N.J.Super. at pp. 229--230, 227 A.2d 539. Plaintiff, Frances Magrine, was injured by a hypodermic needle which defendant, a dentist, had injected into her gum. In the course of the injection the needle broke. Defendant believes 'there must have been some sort of a defect in the needle.' At oral argument we were told that an operation was required to extract the broken portion of the needle. Plaintiff does not charge defendant with negligence, but asserts strict liability in tort, relying on Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965) and Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965).

The trial court denied recovery. Strict liability was refused because the dentist was engaged in a profession, not a large-scale business; he was not a manufacturer or supplier of the needle, but a user of it; he could not discover a latent defect in the needle; and precedent in this state has not yet applied the doctrine beyond manufacturers (Henningsen and Santor, supra), retailers (Henningsen, supra), suppliers such as rental companies (Cintrone, supra) and mass producers of homes (Schipper, supra). The majority of this court affirms.

I disagree with the views of my colleagues. As between an innocent patient and a dentist who causes injury by using a defective instrument the law should require the loss to be borne by the dentist, even if he is not negligent.

The issue posed is as old as jurisprudence: when an innocent person is injured through the inadvertent conduct of another, who should bear the loss? The answer has varied with the epoch and environment. From ancient times until the 19th century the answer given generally was in favor of strict liability. Thereafter, with some exceptions, the basic rule has been to deny recovery against a defendant who is free of negligence. In the 20th century no liability without fault has been the basic premise, but it has been replaced through legislation by strict liability for industrial accidents (workmen's compensation) and for other specific activities such as ground damage by airplanes (N.J.S.A. 6:2--7) and dog bites (R.S. 4:19--16, N.J.S.A.). In addition, the courts have restored strict liability in a broad area where a defective product or device has caused injury.

We may ask ourselves what objectives did the law seek in fashioning these rules of liability? In primative cultures vengeance against the offending thing or person, not compensation, was a primary objective. Holmes, The Common Law, p. 34 (1881). If a man fell from a tree and died the tree was delivered to his relatives or was chopped to pieces. Id., pp. 11, 19, 24. Liability was visited upon the offending source, animate or inanimate, as well as persons connected with it, as if evil inhered in the instrument of harm. Wigmore, 'Responsibility for Tortious Acts: Its History,' 7 Harv.L.Rev. 315, 319 (1894) (hereinafter referred to as 'Wigmore--I'). The reason may have been revenge or superstition or fear of an instrument of evil. It may have seemed just that 'the damage which we have inflicted on others must be made good.' Ehrenzweig, Negligence Without Fault, pp. 13--14 (1951). ¹

This sweeping rule caught all harm-doers; but the difference between intentional and accidental harm was recognized at an early age in criminal law for the purpose of punishment ² and in civil wrongs for the purpose of mitigating damages. ³ If a man's ox was killed by an ox whose owner was ignorant of its propensity 'to push in time past,' then 'They shall sell the live ox, and divide the money of it; and the dead ox also they shall divide.' Exodus 21:35, 36. This is one solution where both parties are blameless: have them share the loss. This approach has some parallel to workmen's compensation laws of the 1900's and to various suggestions made since the 1920's compensate victims of motor vehicle accidents by a strict liability plan. ⁴

In the 19th century fault--the failure to act as an ordinary prudent man--became the central condition of liability for unintentional harm. Brown v. Kendall, 6 Cush. 292 (Mass.Sup.Jud.Ct.1850). The purpose that was championed was the right of individuals and corporations to act freely and unburdened unless harm is done through their negligence. Some areas of strict liability continued at common law, ⁵ but the spirit of laissez faire and the momentum of the industrial revolution prevailed. 'We must have factories, machinery, dams, canals and railroads,' the court said in Losee v. Buchanan, 51 N.Y. 476, 484--485 (Ct.App.1873), denying recovery without proof of negligence for damage to property caused by an exploding boiler. 'By becoming a member of civilized society,' the court said, 'natural rights' must be surrendered, but a benefit is gained through the surrender by others of the same rights. 'I hold my property subject to the risk that it may be unavoidably or accidentally injured by those who live near me; and as I move about upon the public highways and in all places where other persons may lawfully be, I take the risk of being accidentally injured in my person by them without fault on their part.' In 1881 Holmes shared these views; however, he also suggested that deterrence of harmful behavior was a product of the rule that makes fault a condition of liability. Holmes, op. cit. supra, pp. 95--96.

In those days the problem was considered 'on the assumption that plaintiff and defendant were alone involved and that what happened between them was the real issue--that tort liability was paid for out of the defendant's own pocketbook.' 2 Harper & James, op. cit. supra, p. 762. The irony is that the fault rule, which was partly inspired by the desire to protect the growth of industry, was undone by the results of that very growth, namely, an increase in the harmful capacity of mechanized facilities, the inevitability of accidents in their use and the consequent toll of human life and losses. ⁶ The expansion of the economy, the broadening of distribution of goods and services and the new pervasiveness of liability insurance are all part of the environment for the tort law of the 20th century. In this environment new views have taken shape about the objectives of the law. What has become dominant in our time is the need to compensate victims of normal conditions of daily life. 'There is a tendency to revive the idea of liability without fault not only in the frame of wide responsibility for agencies employed, but in placing upon an enterprise the burden of repairing injuries, without fault of him who conducts it, which are an incident to the undertaking. * * * There is a strong and growing tendency, where there is no blame on either side, to ask in view of the exigencies of social justice, who can best bear the loss.' Pound, The Spirit of the Common Law, pp. 188--189 (1921).

Assuring compensation for victims of accidents is a matter of public policy which legislatures have promoted in various ways. ⁷ Very recently the courts have come to serve this purpose by expanding liability without proof of negligence in the area of 'product liability.' This result followed naturally the change in economic and social organization. So long as direct sales...