Turner v. International Harvester Co.

• Decision Date: 07 March 1975
• Parties: , 16 UCC Rep.Serv. 1264 Florence L. TURNER, Administratrix Ad Prosequendum and General Administratrix of the Estate of Thomas W. Turner, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY, a Delaware Corporation, and Hall & Fuhs, Inc., a New Jersey Corporation, Defendants.
• Court: New Jersey Superior Court

Page 277

133 N.J.Super. 277

336 A.2d 62, 16 UCC Rep.Serv. 1264

Florence L. TURNER, Administratrix Ad Prosequendum and General Administratrix of the Estate of Thomas W Turner, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY, a Delaware Corporation, and Hall & Fuhs, Inc., a New Jersey Corporation, Defendants.

Superior Court of New Jersey Law Division.

March 7, 1975.

Mitchell Glucksman, Newark, for plaintiff

Harold I. Braff, East Orange, for defendant International Harvester Company (Braff, litvak, Ertag, Wortmann & Harris, East Orange, attorneys).

Frank L. Brunetti, Jersey City, for defendant Hall & Fuhs, Inc. (Lamb, Hutchinson, Thompson & Chappell, Jersey City, attorneys).

DREIER, J.D.C., Temporarily Assigned.

Defendant Hall & Fuhs, Inc. has moved for summary judgment in this product liability case. The motion shall be granted in part and denied in part for the reasons following.

On or about December 2, 1969 plaintiff's decedent, Thomas W. Turner, acquired a 1967 IHC tractor-truck manufactured by defendant International Harvester Company. There is an issue in the case whether the truck was purchased from defendant Hall & Fuhs, Inc., as set forth in an agreement of sale (Hall & Fuhs, Inc. as the 'seller' and

Turner as the 'buyer'), or whether the truck was in fact purchased from Turner's friend, one Richard W. Carman, or his corporation R. W. Carman, Inc. According to the affidavit of Carman filed in opposition to the motion the truck in question had been traded in by him on a new truck purchased from Hall & Fuhs, Inc. in or about October 1969, and the used truck was delivered to Hall & Fuhs, Inc.'s place of business during the first week in October[336 A.2d 66] 1969. He further alleges that at no time was the truck delivered directly from Carman or his company to Turner. Since this court is enjoined by R. 4:46--2 and the cases interpreting the rule to grant summary judgment only when there is no issue of a material fact, and to grant all favorable inferences to the party opposing such motion, it will be assumed for the purpose of this motion that the truck in question was purchased from Hall & Fuhs, Inc. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954)

The truck was of the type where the engine is located beneath the cab; to work on the engine the cab must be raised and propped or counter-balanced. Two years and four days after taking delivery of the truck, that is, on or about December 6, 1971, plaintiff's decedent was working on the engine. While he was under the cab (which was in its raised position) the cab suddenly collapsed and fell upon him. He died from the ensuing injury. Plaintiff, his widow, sues on behalf of herself and their children for the death on the theories of (a) strict liability, (b) negligence and (c) breach of warranty.

The bill rendered by Hall & Fuhs, Inc. to plaintiff's decedent for the truck in question stated that the sale encompassed:

USED TRACTOR SOLD AS IS

One (1) used 1967 IHC model C04000D Serial G226064

The price was $14,000 plus sales tax.

The summary judgment motion of defendant Hall & Fuhs, Inc. is based upon two theories. First, that the designation of the sale 'as is' in the sale of a used vehicle precludes any claim alleging a defective product; second, the relationship between the parties was that of financing agent and purchaser from a third party and not that of seller and buyer. With respect to the second basis, as noted above this court has determined that the contract and supporting documents (installment sale and security agreement, bill, etc.) signed or issued by Hall & Fuhs, Inc. designate it as the 'seller.' A sufficient issue of fact is thus raised as to the status of the parties that summary judgment would be improper here on that basis. Therefore, the real questions on this motion are the effect of the sale of used goods and of the words 'as is' upon the three causes of action alleged by plaintiff.

I

We will first consider the third claim, that of breach of warranty, for it is the easiest to dispose of. The Uniform Commercial Code in N.J.S.A. 12A: 2--316 covers the subject of exclusion or modification of warranties. One subsection reads as follows:

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that 'There are no warranties which extend beyond the description on the face hereof.'

The next subsection, however, covers the situation now before the court and states:

(3) Notwithstanding subsection (2)

(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is', 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and * * * Circumstances here did not indicate other than the normal statutory exclusion of warranties. The New Jersey Study Comment number 3, citing prior New Jersey case law, shows that this section merely restated the then existing law of the State as of the date the Code was enacted. It therefore appears that plaintiff's claim for breach of warranty must be dismissed, because the sale was for used goods explicitly noted 'as is.'

II

Several recent cases have discussed the necessity for proving a specific defect which caused an injury in order to substantiate a claim in strict liability for tort in product liability actions. See Moraca v. Ford Motor Company, 132 N.J.Super. 117, 332 A.2d 607, (App.Div.1974), aff'd 66 N.J. 454, 332 A.2d 599 (1975). That issue, which will no doubt be central to the trial of this matter, is not a proper subject of this motion since discovery has not yet been concluded. The court will assume for the purpose of this motion either that a specified defect existed with caused the cab to fall, or sufficient circumstantial proofs could be shown to substantiate the existence of some defect. There is no question that such defect, if it existed, manifested itself over two years after the truck had been purchased by plaintiff's decedent. Whether this delay exceeded the time within which it was reasonable to expect the cab catch or counterbalance not to be defective is a jury question and will not be decided here. Moraca, at p. 460, 332 A.2d p. 602. If such is shown at trial the tests of liability set forth in Moraca as to remoteness of time would thus be satisfied. See also, Scanlon v. General Motors, 65 N.J. 582, 326 A.2d 673 (1974). There also is little question but that a dealer in used equipment is strictly liable for defective work repairs or replacement that such dealer has performed on the vehicle before the sale. Realmuto v. Straub Motors, 65 N.J. 336, 344--345, 322 A.2d 440 (1974). What is before this court, however, is the very question left open in Realmuto, where the Supreme Court stated * * * The strict liability in tort rule is of course, grounded in reasons of public policy. Restatement, Torts (2d) § 402A, comment C. It may well be that these policy reasons are not fully applicable to the seller of a used chattel--for example, the buyer cannot be said to expect the same quality and durability in a used car as in a new one and so the used car dealer should not be held to the same strict liability as the seller of new automobiles. We need not reach that broad question here, for we are of the view that a used car dealer ought to be subject to strict liability in tort with respect to a mishap resulting from any defective work, repairs or replacements he has done or made on the vehicle before the sale and we so hold. That in essence is the instant case, at least as it was set forth in the pleadings as a 'defect' case. (at 344--345, 322 A.2d at 444; emphasis supplied)

The germinal statement of the rule of strict liability in tort is found in the Restatement, Torts 2d, § 402A, although the New Jersey courts have expanded the rule beyond these limits:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold * * *

As the Supreme Court in Realmuto noted, quoting from 2 Frumer and Friedman, Products Liability, § 16A(4)(b)(iv), at 3--282 to 3--283, no case in New Jersey has yet applied the rules of strict liability in tort to the seller of a used product. Both the Supreme Court and the authors of the text note that the strict liability rules have been applied in Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 451--453, 212 A.2d 769 (1965), where a defect in a leased motor vehicle was held to be a sufficient basis for applying the rule of strict liability in tort. In New Jersey it appears that the Cintrone case and the recent Realmuto case are the closest that our courts have come to applying this rule to a seller of a used chattel.

Nationally, the cases are collected in Annotation, 'Products Liability--Used Products,' 53 A.L.R.3d 337 (1973).

* * * (C)ourts may consider as a liability-limiting factor the requirement that the used product be unreasonably dangerous, by applying the test of whether an ordinary purchaser of the particular product, considering its age and condition, would regard it as unreasonably dangerous when sold. (Comment at 340)

In Pennsylvania, for example, plaintiff buyer purchased a ten-year-old car from a dealer. Within 15 minutes after leaving...