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Newmark v. Gimbel''s Inc.

Decided: August 7, 1968.


Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.


Plaintiffs Ruth Newmark and Dudley Newmark, her husband, appeal from denial of their motion for judgment in their favor and from a judgment in favor of defendants based upon a jury verdict of no cause for action. For purposes of the present appeal defendants will be considered as one.

Mrs. Newmark sued for injury to her skin and loss of hair following a permanent wave treatment at defendant's beauty parlor. Her husband sued per quod. The trial was before the judge and a jury. There was no transcript, the

appeal being submitted to us on a statement of facts approved by the trial court.

From the statement of facts it appears that on November 16, 1963, when Mrs. Newmark, a regular customer, kept her standing weekly appointment to have her hair washed and set at defendant's beauty parlor, she inquired about a permanent wave that was on special sale. She was waited on by one Valente, a beauty technician, who told her that her fine hair was not right for the special permanent and that she needed a "good" permanent wave. She agreed to this. Her hair was then cut, washed and dried after which it was sectioned off and a waving solution was applied with cotton. Then her hair was rolled section by section following which more waving solution was put on with an applicator bottle and a cream was applied along the hairline and covered with cotton. About three to five minutes after the last of the waving solution had been applied she experienced a burning sensation on the front part of her head. Upon her complaint to Valente he added more salve (cream) to that which had already been applied along the hairline. The burning sensation continued but was alleviated when her hair was rinsed in lukewarm water.

The curlers were thereafter removed and a neutralizing solution applied which was allowed to remain about seven minutes, following which her hair was rinsed and then set by Valente and she was put under a dryer. While under the dryer the burning sensation on the top of her scalp returned and persisted for almost the entire 25 minutes that she was there. When she complained Valente turned down the dryer heat, and this gave her some relief. Her hair was then combed and she left with a severe headache which she did not at the time associate with the permanent wave job.

Her forehead became red that evening. On the following day her whole forehead was red and blisters had appeared. An unusually large amount of her hair fell out when it was combed. On the following Tuesday (November 19), she returned to the beauty parlor where Valente gave her

a conditioning treatment which he said is given when the hair is dry, and which Mrs. Newmark testified made her hair feel singed at the hairline.

Valente admitted that the permanent wave procedure followed was at his suggestion. It is conceded that the permanent wave solution he used was "Candle Glow," a product of Helene Curtis. Valente testified that the processing products he used were applied as they were taken from the original packages or containers, and that it was common for a customer to feel a burning or tingling sensation when the waving lotion was applied. He stated that persons were affected "in varying degrees" by the treatment. When he began the treatment there was "nothing wrong" with her hair or scalp.

On Friday, November 22, Mrs. Newmark visited a dermatologist who also saw her twice thereafter. He diagnosed her condition as contact dermatitis causally related to the hair solution, and loss of hair following dermatitis. Under his treatment the redness and tenderness of the scalp gradually diminished. After the last visit she continued to take medications at his suggestion. At the time of his deposition (date not indicated) there was still loss of hair on the top of her head and he deposed that he could not definitely estimate the time it would take for this to be replaced. Mrs. Newmark also suffered from anxiety and nervousness due to the loss of her hair.

Defendant's brief recites that the package containing the "Candle Glow" lotion contained an instruction to "Ask the patron her previous experience with cold waves to be sure she does not have a sensitivity to waving lotion." Plaintiffs contend in their reply brief that the complete instructions on the package (as set forth in ...

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