Lynch, J.s.c. (temporarily assigned).
The novelty of this case lies in the attempt by plaintiff,*fn1 a patient of defendant dentist, to extend the rule of "strict liability"*fn2 against defendant for personal injuries caused by the breaking of a hypodermic needle in plaintiff's jaw while being used by defendant in an injection procedure. The break was due to a latent defect in the needle.
Novelty, of itself, does not foreclose consideration of plaintiff's contentions in this field of developing tort law. Cf. DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 255 (App. Div. 1957) (in another area). Neither does it justify a headlong leap to impose strict liability unless, based on proper policy considerations and reason, such liability should be found. Plaintiff concedes that there is no precedent -- anywhere -- holding a dentist, or any other "user" of an article, strictly liable for injuries caused by a latent defect therein. Since the case is one of first impression, the court feels impelled to set forth its reasoning at some length.
The case is submitted for decision on a stipulation setting forth the following facts: On November 22, 1963 plaintiff was a patient of defendant. He was administering a local anesthetic with a hypodermic needle inserted in the left
temporomandibular space, a point at the extreme end of the lower gum beyond the last tooth. The needle extended 1 5/8" beyond the syringe. It had been assembled by the doctor just before the injection and had been used approximately eight times for about three weeks prior to the accident. It is the custom of the doctor to use about four needles a month and to discard them at the end of the month. As the injection was being made the needle "separated" at the hub, the place where the needle entered the syringe, leaving the entire 1 5/8" length of the needle in plaintiff's jaw. Defendant does not know what caused the needle to break, but he believes there must have been some sort of defect in it. He does not know from whom he purchased the needle. However, he testified on oral deposition that the needle was manufactured by a certain Precision Bur Company of New York, but in answers to interrogatories he had suggested other possible manufacturers.
Paragraph 22 of the stipulation of facts reads as follows:
"Plaintiffs make no assertion or claim that defendant failed to do what a reasonably prudent person would have done under the circumstances or that defendant did what a reasonably prudent person would not have done. Plaintiffs rely upon strict liability, breach of warranty and breach of contract to recover. They do not assert the negligence of defendant except insofar as negligence may be included in the above theories of liability."
We have seen the rapid development of the "strict liability" concept in the products liability field. It has been chronicled by the leading authorities. Among the more dramatic and complete reviews are those of Prosser, "The Assault upon the Citadel (Strict Liability to the Consumer)," 69 Yale L.J. 1099 (1960), and "The Fall of the Citadel*fn3 (Strict Liability to the Consumer)," 50 Minn. L.R. 791 (1966). See others noted in the latter article at p. 794, n. 9. Prosser fittingly credits New Jersey with having administered the crucial blow
upon the "citadel of privity" in the historic Henningsen v. Bloomfield Motors, Inc. case, 32 N.J. 358 (1960). As to particular products, the doctrine of strict liability had its genesis in food and drink. Prosser: "The Fall," supra, at p. 791. The rapidity of recent movement is shown by the history of § 402A of the Restatement of Torts 2 d. As originally drafted in 1961 it was limited to "food for human consumption." In 1962 it was revised to include other products for "intimate bodily use," and in 1964 it was again revised to apply to "any product." Prosser, "The Fall," supra, at p. 793, n. 9. More recently, we in New Jersey have seen it move from Henningsen, supra (holding liable a manufacturer of automobiles), to Santor*fn4 (manufacturer of rugs), to Schipper*fn5 (mass seller of homes) and, finally, moving out of the "sales" field, to Cintrone*fn6 (lessor of a "U-Drive-It" truck held strictly liable for injuries caused by a defect in the vehicle).
Inspired by the holding in Cintrone, and the authorities cited therein, to the effect that "strict liability" is not confined to "sales" transactions, plaintiff conceives that the gates are wide open, at least to the extent that the doctrine should be applied "to service contracts, and particularly to those involving the use of manufactured implements in the performance of the service."
Plaintiff's argument moves from the major premise that "strict liability" is not confined to "sales," through the minor premise that the basic policy considerations of the doctrine apply to the use of a needle by a dentist, and concludes that he should be held liable though free from negligence. Since the major premise is established (Cintrone), it therefore remains for us to analyze the policy considerations projected by our decisions and other authorities and determine to what extent, if any, they postulate a judgment for plaintiff.
Quoting from 2 Harper and James, Law of Torts, § 28.19, p. 1576 (1956), plaintiff asserts that the relevant policy considerations are as follows:
"Warranties may be imposed or annexed to a transaction by law, because one party to the transaction is in a better position than another (1) 'to know the antecedents that affect * * * the quality of the thing * * *' dealt with; (2) to control those antecedents; (3) and to distribute losses which occur because the thing has a dangerous quality; (4) when that danger is not ordinarily to be expected; (5) so that other parties will be likely to assume its absence and therefore refrain from taking self-protective care."
It should be noted that Harper and James project the said considerations in support of their contention that implied warranties should not be restricted to sales of goods and should be applied elsewhere where the "same considerations obtain." How far outside the field of "sales" they should apply they do not say, except to take note that their views are supported in cases where a commodity is leased or otherwise the subject of a bailment for consideration, and that the rule should be applied to other situations by "suggestive analogy." In any event, the title of the chapter in which the views were expressed is, "Liability of Suppliers of Chattels" (emphasis added). It is to such "suppliers" that all their comments and citations relate. However, we accept the approach of Harper and James and others (e.g., Farnsworth, "Implied Warranties of Quality in Non-Sales Cases," 57 Colum. L. Rev. 653, 667 (1957)), as to whether the considerations stated apply "by suggestive analogy" to the instant situation.
At first glance it would appear that, indeed, defendant dentist is in a "better position" "to know the antecedents that affect * * * the quality" of the needle he used and "to control those antecedents" than his patient -- this for the reason that he selected his own supplier and presumably the particular needle. Literally, therefore, the first policy consideration would appear to be satisfied. But does the statement of Harper and James coincide with the sense of the concept as applied by our Supreme Court?
In Henningsen the court expressed the policy ...