Newmark v. Gimbel's Inc.

• Decision Date: 17 November 1969
• Citation: 258 A.2d 697,54 N.J. 585
• Parties: , 6 UCC Rep.Serv. 1205 Ruth NEWMARK and Dudley Newmark, her husband, Plaintiffs-Respondents, v. GIMBEL'S INCORPORATED, a corporation, and Seligman & Latz Paramus Corporation, a corporation of the State of New Jersey, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 585

54 N.J. 585

258 A.2d 697, 6 UCC Rep.Serv. 1205

Ruth NEWMARK and Dudley Newmark, her husband, Plaintiffs-Respondents, v. GIMBEL'S INCORPORATED, a corporation, and Seligman & Latz Paramus Corporation, a corporation of the State of New Jersey, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Sept. 9 and Sept. 23, 1969.

Decided Nov. 17, 1969.

Albert E. Fershing and Alvin D. Hersh, Newark, for defendants-appellants (Richard D. Bennett, Newark, attorney).

Herman B. Packer, Passaic, for plaintiffs-respondents (Saul Peres, Passaic, attorney).

The opinion of the Court was delivered by

FRANCIS, J.

This appeal involves the liability of a beauty parlor operator for injury to a patron's hair and scalp allegedly resulting from a product used in the giving of a permanent wave. The action was predicated upon charges of negligence and breach of express and implied warranty. Trial was had before the county district court and a jury. At the close of the proof, the court ruled as a matter of law that the warranty theory of liability was not maintainable because in giving a permanent wave a beauty parlor is engaged in rendering a service and not a sale; hence responsibility for injurious results could arise only from negligence. Consequently the court dismissed the warranty counts and submitted the issue of negligence for the jury's determination. Upon the return of a verdict for defendants, plaintiffs appealed. The Appellate Division reversed holding that a fact issue existed requiring jury decision as to whether there was an implied warranty of fitness of the lotion applied to Mrs. Newmark's hair and scalp for the purpose of producing the permanent wave. ¹ Newmark v. Gimbel's Inc., 102 N.J.Super. 279, 246 A.2d 11 (App.Div.1968). Thereafter we granted defendants' petition for certification. 53 N.J. 62, 247 A.2d 886 (1968).

The trial testimony was not recorded and the matter was submitted to the Appellate Division on an agreed statement of facts. On argument before us, the following facts were likewise undisputed.

The defendants, who by stipulation were to be considered as one, operated a number of beauty parlors where permanent waves were offered to the public for a consideration. For about a year and a half prior to the incident in question, Mrs. Newmark had been a patron of one of defendants' shops where she had a standing appointment every week to have her hair washed and set. She was usually attended by the same operator, one William Valante. During that period plaintiffs' brief asserts and defendants do not deny that she had purchased permanent waves there, at least one having been given by Valante, ² and she had not experienced any untoward results.

On November 16, 1963, pursuant to an appointment, Mrs. Newmark went to the beauty parlor where she inquired of Valante about a permanent wave that was on special sale. He told her that her fine hair was not right for the special permanent and that she needed a 'good' permanent wave. She agreed to accept the wave suggested by him. Valante conceded that the wave she received was given at his suggestion and that in accepting it she relied on his judgment as to what was good for her hair. Both Valante and Mrs. Newmark testified there was nothing wrong with her hair or scalp before the wave was given.

Valante proceeded to cut and wash her hair after which he put her head under a dryer for about 10 minutes. The hair was then sectioned off, a permanent wave solution marketed under the name 'Helene Curtis Candle Wave' was applied with cotton and the hair was rolled section by section. Following this, more of the waving solution was put on by an applicator-bottle. Then a cream was placed along the hairline and covered with cotton. About three to five minutes after the last of the waving solution had been applied Mrs. Newmark experienced a burning sensation on the front part of her head. She complained to Valante who added more cream along the hairline. This gave some relief but after a few minutes she told him that it was burning again. The burning sensation continued but was alleviated when Valante brought her to a basin and rinsed her hair in lukewarm water. The curlers were then removed, a neutralizing solution was applied and allowed to remain for about seven minutes, and her hair was again rinsed. After this Valante set her hair and again put her under the dryer where she remained for about 25 minutes. The burning sensation returned and she promptly informed Valante who reduced the heat of the dryer thereby giving her partial relief. When the dryer operation was completed her hair was combed, and she left the parlor.

That evening her head reddened, and during the following day her entire forehead was red and blistered. A large amount of hair fell out when it was combed. On November 19 she returned to defendants' place of business where Valante gave her, without charge, a conditioning treatment which he told her is given when the hair is dry. Mrs. Newmark testified that it made her hair feel signed at the hairline.

Six days after the permanent wave Mrs. Newmark consulted a dermatologist who diagnosed her condition as contract dermatitis of the scalp and loss of hair resulting therefrom. On the basis of his experience, he concluded that the sole cause of her condition was the permanent wave solution. The redness and tenderness of the scalp diminished under his treatment. When he last saw her on December 13, 1963 the loss of hair on the top of her head was still present and he could not estimate the time it would take for replacement.

Defendants' dermatologist examined plaintiff over four months after the incident. He noticed several areas of diminution of hair which he attributed to Mrs. Newmark's use of wire brush curlers. The agreed statement of facts does not say expressly that the doctor denied plaintiffs' physician's assertion that the permanent wave solution caused the dermatitis. Since defendants argue that there was insufficient proof of the solution's defectiveness, presumably their contention is that their doctor's attribution of the diminution of hair to Mrs. Newmark's use of wire brush curlers warrants an inference that such curlers were the original producing cause of her dermatitis. Such an inference is rather insubstantial in view of Mrs. Newmark's assertion that she never had any such condition before the solution was applied on the occasion in question, and in the absence of any testimony by Valante or any of defendants' beauticians who gave her waves for a long time before the injurious event, that her use of wire brush hair curlers had caused or would cause damage to her scalp or loss of hair. Moreover, plaintiffs' dermatologist acknowledged that wire brush curlers could cause breakage of hair but expressly denied that they could cause dermatitis.

Valante identified the permanent wave solution as 'Candle Glow,' a product of Helene Curtis. He said the liquid was mild but could damage a scalp which had scratches on it or could cause a sting if the solution were rubbed into the scalp. He applied the solution as it came from the original package or container, and his experience had shown that a tingling or burning sensation, the degree varying with different persons, was fairly common. The label on the package contained a caveat for the beauty operator. It said:

'Always wear rubber gloves when giving a wave. Make sure patron's hair and scalp are in condition to receive a cold wave. Never brush or rub the scalp vigorously either before or after shampooing. If the scalp is excessively tender or shows evidence of sores or abrasions, the wave should not be given. Ask the patron her previous experience with cold waves to be sure she does not have a sensitivity to waving lotion.'

Mrs. Newmark did not see this label, and there is nothing in the record to indicate Valante asked her about any previous experience with cold waves. It does appear, however, that she had four permanent waves without ill effects after the incident involved here and before trial of this case.

In dismissing the cause of action based on warranty, the trial court expressed the view that the transaction with Mrs. Newmark was not a sale within the contemplation of the Uniform Commercial Code, N.J.S.A. 12A:2--106(1), but rather an agreement for the rendition of services. Therefore, it was not accompanied by any warranty of fitness of products used in rendering the services, and the liability of the beauty parlor was limited to the claim of negligence. Having in mind the nature of a permanent wave operation, we find that the distinction between a sale and the rendition of services is a highly artificial one. If the permanent wave lotion were sold to Mrs. Newmark by defendants for home consumption or application or to enable her to give herself the permanent wave, unquestionably an implied warranty of fitness for that purpose would have been an integral incident of the sale. Basically defendants argue that if, in addition to recommending the use of a lotion or other product and supplying it for use, they applied it, such fact (the application) would have the effect of lessening their liability to the patron by eliminating warranty and by limiting their responsibility to the issue of negligence. There is no just reason why it should. On the contrary by taking on the administration of the product in addition to recommending and supplying it, they might increase the scope of their liability, if the method of administration were improper (a result not suggested on this appeal because the jury found no negligence).

The transaction, in our judgment, is a hybrid partaking of incidents of a sale and a service. It is really partly the rendering of service, and partly the supplying of goods for a consideration. Accordingly, we agree with the Appellate Division that an implied warranty of fitness of the products used in giving the permanent wave exists with no less...