Kilkenny, Carton and Botter. Botter, J.s.c. (temporarily assigned) dissenting.
Plaintiff-patient Frances Magrine brought action against defendant-dentist to recover for personal injuries sustained when a latently defective hypodermic needle broke or separated while it was being injected into her gum by defendant. Plaintiff Alfred Magrine sought to recover derivative damages.
The pertinent facts are set forth in Judge Lynch's opinion, reported sub. nom. Magrine v. Krasnica, 94 N.J. Super. 228 (Cty. Ct. 1967).
The stipulation of facts upon which the case was submitted included the following: Plaintiff makes 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. Plaintiff relies upon strict liability, breach of warranty and breach of contract to recover.
Judge Lynch, in an opinion in which he carefully reviewed the recent developments of the doctrine of strict liability and analyzed various policy decisions involved, concluded that judgment should be entered for defendant. Plaintiffs appeal.
The sole issue presented here is whether a dentist is strictly liable to a patient injured by a defective instrument used in the course of treatment. In our opinion, the imposition of liability on the defendant-dentist cannot be justified on the
basis of any of the accepted policies which underlie the doctrine of strict liability as it is presently understood. Nor are we persuaded that that doctrine should be extended under the circumstances of this case so as to render the defendant-dentist liable without fault for a defect in a needle which he merely purchased and used.
The judgment appealed from is therefore affirmed.
BOTTER, J.S.C. (temporarily assigned) dissenting: The case comes up on a stipulation of facts. 94 N.J. Super., at pp. 229-230. Plaintiff, Frances Magrine, was injured by a hypodermic needle which defendant, a dentist, had injected into her gum. In the course of the injection the needle broke. Defendant believes "there must have been some sort of a defect in the needle." At oral argument we were told that an operation was required to extract the broken portion of the needle. Plaintiff does not charge defendant with negligence, but asserts strict liability in tort, relying on Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960); Santor v. A & M Karagheusian, Inc., 44 N.J. 52 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434 (1965) and Schipper v. Levitt & Sons, Inc., 44 N.J. 70 (1965).
The trial court denied recovery. Strict liability was refused because the dentist was engaged in a profession, not a large-scale business; he was not a manufacturer or supplier of the needle, but a user of it; he could not discover a latent defect in the needle; and precedent in this state has not yet applied the doctrine beyond manufacturers (Henningsen and Santor, supra), retailers (Henningsen, supra), suppliers such as rental companies (Cintrone, supra) and mass producers of homes (Schipper, supra). The majority of this court affirms.
I disagree with the views of my colleagues. As between an innocent patient and a dentist who causes injury by using a defective instrument the law should require the loss to be borne by the dentist, even if he is not negligent.
The issue posed is as old as jurisprudence: when an innocent person is injured through the inadvertent conduct of another, who should bear the loss? The answer has varied with the epoch and environment. From ancient times until the 19th century the answer given generally was in favor of strict liability. Thereafter, with some exceptions, the basic rule has been to deny recovery against a defendant who is free of negligence. In the 20th century no liability without fault has been the basic premise, but it has been replaced through legislation by strict liability for industrial accidents (workmen's compensation) and for other specific activities such as ground damage by airplanes (N.J.S.A. 6:2-7) and dog bites (R.S. 4:19-16). In addition, the courts have restored strict liability in a broad area where a defective product or device has caused injury.
We may ask ourselves what objectives did the law seek in fashioning these rules of liability? In primitive cultures vengeance against the offending thing or person, not compensation, was a primary objective. Holmes, The Common Law, p. 34 (1881). If a man fell from a tree and died the tree was delivered to his relatives or was chopped to pieces. Id., pp. 11, 19, 24. Liability was visited upon the offending source, animate or inanimate, as well as persons connected with it, as if evil inhered in the instrument of harm. Wigmore, "Responsibility for Tortious Acts: Its History," 7 Harv. L. Rev. 315, 319 (1894) (hereinafter referred to as "Wigmore-I"). The reason may have been revenge or superstition or fear of an instrument of evil. It may have seemed just that "the damage which we have inflicted on others must be made good." Ehrenzweig, Negligence Without Fault, pp. 13-14 (1951).*fn1
This sweeping rule caught all harm-doers; but the difference between intentional and accidental harm was recognized
at an early age in criminal law for the purpose of punishment*fn2 and in civil wrongs for the purpose of mitigating damages.*fn3 If a man's ox was killed by an ox whose owner was ignorant of its propensity "to push in time past," then "They shall sell the live ox, and divide the money of it; and the dead ox also they shall divide." Exodus 21:35, 36. This is one solution where both parties are blameless: have them share the loss. This approach has some parallel to workmen's compensation laws of the 1900's ...