For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.
This is a products liability case in which the Law Division granted defendants' motion for summary judgment. The Appellate Division reversed in an unreported opinion and we granted certification on the defendants' petition. 46 N.J. 312 (1966).
The claim is a bizarre one. The evidence before the trial court on the motion derived from plaintiff's own testimony in a deposition taken by defendants. Early in November 1961, he purchased a water softener for his home which was manufactured, sold and installed by defendants. The installation was completed on November 9 and it functioned without difficulty until November 23. Plaintiff, a factory worker, had been out of employment for several weeks because of a fractured ankle sustained at work. His wife was away. Very early that morning he drew water from a faucet in the
kitchen sink and made coffee. He did not look at the water and could not say whether it was discolored. He drank the coffee without any ill effect. A half to three quarters of an hour later, he turned on a faucet in the bathroom to brush his teeth and saw that the water coming from it was brownish or rusty in color. He did not put any of it in his mouth, but, assuming that the water with which he made the coffee was similarly discolored, thought he had been poisoned "in the stomach." "* * * I started to get faint and all shook up and nervous and sweating, and I laid down and just breathing hard." A heart attack immediately ensued and he was hospitalized for about three weeks. He returned to his job about a month after his return from the hospital.
The complaint alleged both breach of warranty (actually, strict liability in tort, see Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 450 (1965)) and negligence on the part of defendants. (The result we reach does not depend on any distinction between the theories.) The contention is that the water softener was defective either in manufacture or in the manner of installation so that iron or other substances removed from the original state of the water by the apparatus somehow ultimately was returned to the lines in the house causing the rusty discoloration. Plaintiff does not contend that the condition of the water was harmful in itself to a human being or that any internal physical injury to him in fact ensued from the water, even though it could be inferred that the coffee had been made from water equally discolored. He does say rather that the heart attack was brought on only by fear or fright, at the sight of the brownish water, that he had been poisoned by drinking the coffee. In other words, his thesis is that the illness which followed was caused by psychic stimuli. His counsel represented to the court that he was prepared to present expert medical testimony at trial to that effect. While plaintiff offered no formal proofs in opposition to defendants' summary judgment motion, we shall assume, as defendants do, that the factual contentions outlined could be prima facie established by proper trial evidence.
Defendants' argument at the trial level, with which the judge agreed, was that, so viewing plaintiff's claim, his ailment was induced solely by emotional shock or fright without any physical contact and therefore was not recognizable under the state of our law at the time. On plaintiff's appeal to the Appellate Division, he urged that there was a sufficient minimum physical contact in the drinking of the coffee or, alternatively, that our law should be changed to allow liability in such situations regardless of the absence of physical contact. Before argument in the Appellate Division, the opinion in Falzone v. Busch, 45 N.J. 559 (1965), was handed down. The Appellate Division's decision was simply a statement saying essentially that the holding in Falzone would permit recovery in the instant type of case. The effect was that the summary judgment was set aside and the matter remanded for plenary trial.
We think the Appellate Division read Falzone too broadly. The holding has to be evaluated in the light of the facts of that case. The matter came up on the sufficiency of the complaint which alleged that the plaintiff was sitting in a parked automobile and that her husband was standing in a field adjacent to the road and was struck by defendant's negligently driven automobile. The car thereafter "veered across the highway and headed in the direction of this plaintiff," coming "so close to plaintiff as to put her in fear for her safety," as a direct result of which she became ill. (45 N.J., at p. 561) It was in this context that we concluded: "We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright." (45 N.J., at p. 569; emphasis added)
We were speaking of "reasonable fear of personal injury" in the sense of a reasonably apprehended physical impact
upon the person of the type involved in Falzone and similarly in Ward v. West Jersey & Seashore R.R. Co., 65 N.J.L. 383 (Sup. Ct. 1900), which Falzone overruled. The holding did not encompass consequences of fears of the kind the plaintiff Caputzal says he underwent, quite apart from the question of whether his fear could be said to be "reasonable." A line of cases still viable, however, is that in which recovery was allowed against a manufacturer on a fact finding that the plaintiff suffered a minor and not extraordinary gastric disturbance after swallowing a foreign substance, even a harmless one, contained in food or drink. E.g., Cassini v. Curtis Candy Co., 113 N.J.L. 91 (Sup. Ct. 1934); Sheenan v. Coca-Cola Bottling Co. of New York, Inc., 41 N.J. Super. 213 (App. Div. 1956), certification denied 22 N.J. 268 (1956).
Beyond what we have just said and approaching the problem in the instant case from the more broadly analytical angle involving usual tort concepts, we are convinced there should be no liability in this type of injury. Although this aspect was touched upon in the briefs of the parties rather lightly, it was adequately explored at oral argument. As has been indicated, in the posture in which the case is presented we must assume the truth of a defective apparatus or installation which would ordinarily give rise to some liability for personal injury, on the theory either of strict liability in tort (warranty) or negligence, and of a psychic physical consequence. The question is whether liability therefor should be imposed on a manufacturer, seller or installer, although the principles involved are equally applicable to other kinds of defendants and, indeed, with respect to other types ...