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Levis v. Zapolitz

Decided: February 6, 1962.

GERARD LEVIS, AN INFANT BY HIS GUARDIAN AD LITEM, MARGARET LEVIS, AND MARGARET LEVIS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
GEORGE ZAPOLITZ, TRADING AS GALE SALES CO., AND LESTER STEIN AND ALLEN SETTEL, DEFENDANTS-RESPONDENTS



Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).

Labrecque

This is an appeal from a dismissal of plaintiffs' complaint by the Law Division on the grounds, as stated in the order, of failure "to state a claim upon which relief can be granted and that there is no genuine issue as to any material fact."

On June 21, 1958 plaintiff Gerard Levis, then 15 years of age, was struck in the right eye by part of a toy sling shot, an arm of which had broken off as he was using it. The sling shot had been purchased on the preceding day by his brother Joseph Levis, aged 12, from the defendants Stein and Settel, who operated a store at 75 Avon Avenue, Newark. The trauma resulted in permanent injury to the plaintiff's eyesight.

Suit alleging negligence was brought by the plaintiff's mother, as his guardian ad litem and individually, against Stein and Settel, the retailers, and also against George Zapolitz, the jobber or wholesaler from whom they had purchased the sling shot. The manufacturer was not joined.

Zapolitz had purchased a gross of the toy sling shots from a distributor for $7.20 and had sold one dozen to Stein and Settel for 72 cents. He delivered the order in the original packaging and conceded that he had made no inspection or test of the sling shots. Likewise, no inspection or test was made by or on behalf of either Stein or Settel (although the contrary had been originally asserted in the answers to interrogatories served by them).

The appendix tells us very little as to the nature or extent of the defect which brought about the break. The sling shot was a plastic toy. A rubber band attached to the arm was the propelling force. The purchase price was ten cents. One of the arms was claimed to have broken off due to a defect in manufacturing. At the oral argument it was conceded by plaintiff that the defect which allegedly brought about the break was internal and not one which could have been detected by visual inspection.

Pursuant to leave granted in the pretrial order, defendants filed a joint motion to dismiss the complaint for failure to state a claim upon which relief can be granted. R.R. 4:12-2. At the conclusion of the hearing on the motion, the trial judge stated:

"It seems to me the only theory upon which the plaintiff can rely in this case is the failure to inspect; that the duty was on both of them to inspect; and that an inspection would have revealed this defect.

I am going to hold that there is no duty to inspect here and grant both your motions."

The plaintiffs treat the trial court's order as one for summary judgment under R.R. 4:58-3, and their brief seeks to point out various factual issues assertedly raised by the pleadings, pretrial order and interrogatories, which merited a jury trial. The order of the trial court leaves it uncertain whether the matter was being disposed of on the basis of insufficiency of the complaint alone, R.R. 4:12-2, or of the complaint and the other matters of record taken together, R.R. 4:58-3. This is of no consequence, however, as we view the case as presenting only an issue of law.

The complaint alleged that defendants, in selling the sling shot, were violating N.J.S. 2A:151-2, 10 and 12 (which prohibit the manufacture or sale of certain enumerated weapons including a "slung shot"). The court held to the contrary and this contention is not pressed on appeal. The other grounds of liability asserted were that the defendants were negligent "in selling a dangerous instrumentality to a minor * * *; and permitting a minor to obtain possession of a dangerous instrumentality when inexperienced in the handling of sling shots" and in "* * * failing to discover that the said sling shot was not properly manufactured * * *." Defendants deny that the sling shot was a dangerous instrumentality and deny any duty of inspection.

Initially, the plaintiffs urge that a plastic sling shot is not a proper article to be sold as a ...


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