Roth v. Ray-Stel's Hair Stylists, Inc.

• Decision Date: 01 November 1984
• Docket Number: RAY-STEL
• Citation: 18 Mass.App.Ct. 975,470 N.E.2d 137
• Parties: , 39 UCC Rep.Serv. 1239 Judith ROTH et al. v.'S HAIR STYLISTS, INC. et al. Bristol
• Court: Appeals Court of Massachusetts

Page 137

470 N.E.2d 137

18 Mass.App.Ct. 975, 39 UCC Rep.Serv. 1239

Judith ROTH et al. v. RAY-STEL'S HAIR STYLISTS, INC. et al.

Appeals Court of Massachusetts,

Bristol.

Argued Oct. 10, 1984.

Decided Nov. 1, 1984.

Eugene F. Nowell, for Roux Laboratories, Inc.

Alan S. Novick, New Bedford, for plaintiffs.

Gary D. Buseck, Boston (Robert L. Farrell and Cynthia J. Cohen, Boston, with him), for Ray-Stel's Hair Stylists, Inc.

Before BROWN, CUTTER and FINE, JJ.

RESCRIPT.

On March 13, 1980, Judith Roth kept an appointment with her hairdresser to have her hair bleached. She left the beauty salon later that afternoon with a considerable reduction in the quantity and attractiveness of her hair and, from that date until some months later, she suffered embarrassment and distress as her damaged hair slowly returned to normal. She and her husband, Bruce Roth, sued the owner of the beauty salon, Ray-Stel's Hair Stylists, Inc. (Ray-Stel), and Roux Laboratories, Inc. (Roux), manufacturer of "Roux Gentle Blond Low pH Bleach," the product used on her hair on that unfortunate occasion. In the complaint the Roths alleged negligence and breach of express and implied warranties resulting in personal injuries to Judith Roth and loss of consortium to Bruce Roth. Each of the defendants filed a cross-claim against the other, seeking contribution and indemnification.

The case was presented to a jury in the Superior Court. At the close of the evidence, the judge allowed both defendants' motions for directed verdicts on the husband's loss of consortium claim, but he denied all other motions for required findings. The jury found liability on the part of Roux on the basis of negligence and express warranty and assessed damages in the amount of $5,000. The jury found in favor of Roux on the implied warranty theories; they found no liability on the part of Ray-Stel on any theory; and on Roux's cross-claim against Ray-Stel, they found for Ray-Stel.

Roux filed motions for a new trial and for judgment notwithstanding the verdict, both of which were denied, and now appeals from the ensuing judgments entered against it. Bruce Roth also appeals from the removal from the jury's consideration of his claim for damages.

We find it unnecessary to consider Roux's contentions relating to supposed inadequacies in the case against it on a negligence theory because the verdict may stand on the finding that there was a breach of an express warranty. There was evidence that the box containing the bleach bore the following words: "Doesn't creep or swell. Stay-put consistency. Applies Easily. Consistency equal to and in some cases better than competitive bleaches. Gentle Blond does not run or creep, swell or puff. Stays where it is put for an easy application." The hairdresser testified that he had read the information printed on the box, and, relying on it, he recommended its use to Judith Roth, whose hair he had been bleaching regularly for seven years with a different Roux product. He stated that the product did swell rapidly and that, in doing so, it very quickly caused the damage to the hair. Thus, the jury had before them all of the required elements for a claim of breach of express warranty. G.L. c. 106, § 2-313. Tirino v. Kenner Prod. Co., 72 Misc.2d 1094, 341 N.Y.S.2d 61 (N.Y.Civ.Ct.1973). Nolan, Tort Law § 232 (1979). Certainly the jury were warranted in finding that Judith Roth was a person whom Roux "might reasonably have expected to ... be affected by the goods." G.L. c. 106, § 2-318, inserted by St.1971, c. 670, § 1. Consequently, contrary to the contentions of Roux,...