246 A.2d 11 (N.J. Super. Ct. App. Div. 1968), aff'd, 258 A.2d 697 (N.J. 1969)
Ruth Newmark and her husband Dudley Newmark brought suit against Gimbel's Incorporated after Mrs. Newmark suffered skin injury and hair loss following a permanent wave treatment at the defendant's beauty parlor on November 16, 1963.1 Mrs. Newmark, a regular customer, had kept her weekly appointment for a hair wash and set when she inquired about a permanent wave on special sale.2 Valente, the beauty technician, recommended a regular permanent wave instead, citing her fine hair, and she agreed.3
The treatment involved cutting, washing, and drying her hair, followed by sectioning and application of Candle Glow waving solution with cotton and an applicator bottle, along with cream along the hairline.4 After rolling the hair, additional solution was applied, and within three to five minutes Mrs. Newmark experienced a burning sensation, which prompted Valente to add more cream.5 The solution was rinsed, curlers removed, neutralizer applied for seven minutes, and her hair was set and dried under a dryer where the burning returned for nearly the full twenty-five minutes.6
That evening her forehead reddened, and the next day blisters appeared with significant hair loss upon combing.7 She returned to the parlor on November 19 for a conditioning treatment.8 On November 22 she consulted a dermatologist who diagnosed contact dermatitis related to the hair solution and ongoing hair loss, treating her over multiple visits with medications that continued afterward.9 Defendant's dermatologist examined her four months later and attributed hair diminution to wire brush curlers rather than permanent scalp injury.10
At trial, the court ruled as a matter of law that plaintiffs could not recover on express or implied warranty theories.11 It submitted only the negligence claim to the jury, which returned a verdict of no cause for action.12 Plaintiffs had moved unsuccessfully for judgment on liability and had obtained a ruling that contributory negligence was not a defense.13 Post-verdict motions for new trial or judgment notwithstanding the verdict were denied.14 The appeal followed from the denial of those motions and the entry of judgment for defendants.15
Whether warranty principles permit a recovery against a beauty parlor operator for injuries sustained by a customer as a result of use on the customer of a product which was selected and furnished by the beauty parlor operator?16
Warranties of fitness are regarded by law as an incident of a transaction because one party to the relationship is in a better position than the other to know and control the condition of the chattel transferred and to distribute the losses which may occur because of a dangerous condition the chattel possesses.17 The policy reasons applicable in the case of sales would likewise justify the extension of liability for breach of warranty to any commercial transaction where one person supplies a product to another, whether or not the transaction be technically considered as a sale.18 Stripped of its nonessentials the transaction here in question, consisting of the supplying of a product for use in the administration of a permanent wave to plaintiff, carried with it an implied warranty that the product used was reasonably fit for the purpose for which it was to be used under N.J.S. 12A:2-315.19
Yes. Mrs. Newmark was a regular customer of Gimbel's beauty parlor who received a permanent wave treatment on November 16, 1963, after Valente selected and applied the Candle Glow waving solution along with neutralizer in a process that consumed the product while intending its effect to remain.20 Gimbel's profited from the transaction, knew of any special instructions for the lotion, and stood in a strategic position to promote safety by pressuring suppliers or conducting tests for customer susceptibility, exactly the factors that justify extending implied warranty liability beyond strict sales.21
The trial court's ruling that warranty did not apply was mistaken, and the issue of defendant's liability for breach of implied warranties of fitness for purpose and merchantability should have been submitted to the jury.22
Whether the beauty technician's recommendation that Mrs. Newmark needed a good permanent wave constituted an express warranty?23
The reference in question was in the context of his testimony that Mrs. Newmark had very fine hair. Thus the adjective "good" had reference to the effectiveness, so far as her hair was concerned, of a regular permanent wave as compared with the wave which was on sale, rather than to the safety of the solution or lotion used in administering the wave. We therefore find no case whatever for breach of express warranty.24
No. Valente's statement that Mrs. Newmark needed a good permanent wave occurred in the context of noting her fine hair. This compared the effectiveness of a regular permanent wave to the special sale version, without any reference to the safety of the Candle Glow solution or its suitability for her scalp.25
The recommendation did not amount to an express warranty concerning the safety of the product, so plaintiffs presented no case for breach of express warranty.26
Whether the evidence presented was sufficient to permit a jury to find that the permanent wave product was defective within the meaning of implied warranty liability?27
The mere fact that only a small proportion of those using the Candle Glow waving solution would thereby suffer injury does not absolve the seller from liability on the basis of implied warranty.28 A warning on the product from which it could be inferred that use without precautions could adversely affect an appreciable number of persons supports a finding of defect.29
Yes. The approved statement of facts showed that the Candle Glow package carried a warning to ask about prior cold wave experience to avoid sensitivity, Valente testified that burning or tingling sensations were common and persons were affected in varying degrees, and Mrs. Newmark had undergone prior and subsequent permanent waves without adverse effects, allowing the jury to conclude the product was defective rather than merely triggering a unique allergy.30