On appeal from the Superior Court, Appellate Division, whose opinion is reported at 102 N.J. Super. 279.
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the Court was delivered by Francis, J.
[54 NJ Page 588] This appeal involves the liability of a beauty parlor operator for injury to a patron's hair and scalp allegedly resulting from a product used in the giving of a permanent wave. The action was predicated upon charges of negligence and breach of express and implied warranty. Trial was had before the county district court and a jury. At the close of the proof, the court ruled as matter of law that the warranty theory of liability was not maintainable because in giving a permanent wave a beauty parlor is engaged in rendering a service and not a sale; hence responsibility
for injurious results could arise only from negligence. Consequently the court dismissed the warranty counts and submitted the issue of negligence for the jury's determination. Upon the return of a verdict for defendants, plaintiffs appealed. The Appellate Division reversed holding that a fact issue existed requiring jury decision as to whether there was an implied warranty of fitness of the lotion applied to Mrs. Newmark's hair and scalp for the purpose of producing the permanent wave.*fn1 Newmark v. Gimbel's Inc., 102 N.J. Super. 279 (App. Div. 1968). Thereafter we granted defendants' petition for certification. 53 N.J. 62 (1968).
The trial testimony was not recorded and the matter was submitted to the Appellate Division on an agreed statement of facts. On argument before us, the following facts were likewise undisputed.
The defendants, who by stipulation were to be considered as one, operated a number of beauty parlors where permanent waves were offered to the public for a consideration. For about a year and a half prior to the incident in question, Mrs. Newmark had been a patron of one of defendants' shops where she had a standing appointment every week to have her hair washed and set. She was usually attended by the same operator, one William Valante. During that period plaintiffs' brief asserts and defendants do not deny that she had purchased permanent waves there, at least one having been given by Valante,*fn2 and she had not experienced any untoward results.
On November 16, 1963, pursuant to an appointment, Mrs. Newmark went to the beauty parlor where she inquired of Valante about a permanent wave that was on special sale. He told her that her fine hair was not right
for the special permanent and that she needed a "good" permanent wave. She agreed to accept the wave suggested by him. Valante conceded that the wave she received was given at his suggestion and that in accepting it she relied on his judgment as to what was good for her hair. Both Valante and Mrs. Newmark testified there was nothing wrong with her hair or scalp before the wave was given.
Valante proceeded to cut and wash her hair after which he put her head under a dryer for about 10 minutes. The hair was then sectioned off, a permanent wave solution marketed under the name "Helene Curtis Candle Wave" was applied with cotton and the hair was rolled section by section. Following this, more of the waving solution was put on by an applicator-bottle. Then a cream was placed along the hairline and covered with cotton. About three to five minutes after the last of the waving solution had been applied Mrs. Newmark experienced a burning sensation on the front part of her head. She complained to Valante who added more cream along the hairline. This gave some relief but after a few minutes she told him that it was burning again. The burning sensation continued but was alleviated when Valante brought her to a basin and rinsed her hair in lukewarm water. The curlers were then removed, a neutralizing solution was applied and allowed to remain for about seven minutes, and her hair was again rinsed. After this Valante set her hair and again put her under the dryer where she remained for about 25 minutes. The burning sensation returned and she promptly informed Valante who reduced the heat of the dryer thereby giving her partial relief. When the dryer operation was completed her hair was combed, and she left the parlor.
That evening her head reddened, and during the following day her entire forehead was red and blistered. A large amount of hair fell out when it was combed. On November 19 she returned to defendants' place of business where Valante gave her, without charge, a conditioning treatment which he told her is given when the hair is dry. Mrs. Newmark
testified that it made her hair feel singed at the hairline.
Six days after the permanent wave Mrs. Newmark consulted a dermatologist who diagnosed her condition as contact dermatitis of the scalp and loss of hair resulting therefrom. On the basis of his experience, he concluded that the sole cause of her condition was the permanent wave solution. The redness and tenderness of the scalp diminished under his treatment. When he last saw her on December 13, 1963 the loss of hair ...