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Lamendola v. Mizell

Decided: July 2, 1971.


Doan, J.c.c. (temporarily assigned).


This matter is before the court on motion of two of the defendants for judgment notwithstanding the verdict, or in the alternative, for a new trial, and on motion of the third-defendant addressed to the excessiveness of the verdict in favor of plaintiff Alphonse Lamendola.

After a five-day trial the jury returned verdicts in the amounts of $100,000 and $50,000 for plaintiffs Elvera Lamendola and her husband Alphonse, respectively. The damages were assessed against all defendants, Lucius Mizell, Cerami Pontiac and General Motors Corporation, upon findings of negligence of Mizell and of breach of warranty ("products liability") of Cerami and General Motors.

Evidence uncontroverted at trial showed that defendant Mizell had purchased a new 1966 Grand Prix Pontiac from Cerami. On December 4, 1965, the date of delivery, with approximately eight miles registered on the odometer, the Mizell vehicle went out of control and struck plaintiffs' automobile head on in the lane in which the latter was travelling. It appeared further from the proofs that the Mizell vehicle went out of control due to an accelerator pedal which, when depressed, stuck and stayed down on the floor of that car; it was claimed that the linkage bound, most likely at the bell crank. There was controversy as to whether the vehicle lurched forward from a parked position or was intentionally accelerated by Mizell, but it was clear that the car travelled some 340 feet before striking the Lamendola vehicle travelling in the opposite direction.


Defendants urge the inconsistency of the companion verdicts of products liability against General Motors and Cerami Pontiac with the verdict of negligence against Mizell, the driver of the vehicle.

Initially it should be remarked that the legal theories of products liability and negligence are not mutually repulsive; each arises from a misfeasance or nonfeasance in violation of a legal duty. Furthermore, a tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence, and it is generally sufficient if his negligent conduct was a "substantial factor" in bringing about the injuries. Rappaport v. Nichols , 31 N.J. 188, 203 (1959). See also: Restatement, Torts 2d, ยงยง 431, 432. It is the rule in New Jersey that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof although the act of a third person may have contributed to the final result. Menth v. Breeze Corporation, Inc. , 4 N.J. 428 (1950). The above rules are eminently applicable here. Clearly, defective manufacture and negligence are implicit in the verdicts. Upon any of the theories presented in the factual pattern it cannot be said that the verdicts are, by their nature, inherently inconsistent. In the final analysis it is solely the function of the jury to determine whether each defendant's actions were substantial factors in causing the plaintiffs' injuries. Brower v. N.Y.C. & H.R.R.R. Co. , 91 N.J.L. 190 (E. & A. 1917), and their determinations will not herein be disturbed.


The absence of privity between plaintiffs and defendants General Motors and Cerami Pontiac presents an issue foursquare for determination, namely, whether an "innocent bystander," injured by a defective product in the hands of the consumer or user, can maintain an action against the

manufacturer and seller on the theory of strict liability in tort? This question has not, to the present time, been resolved by the courts of this jurisdiction, and the language of the Supreme Court in Courtois v. General Motors Corporation , 37 N.J. 525 (1962), indicates that determination of this issue has been specifically reserved. However, the direction of the law of products liability in this jurisdiction has become quite clear from the thrust of two recent decisions:

Cintrone v. Hertz Truck Leasing, etc. , 45 N.J. 434 (1965), held that a warranty for fitness extends beyond the pure "sales" relationship and could properly constitute the basis for recovery by the injured employee of a bailee for hire.

Rosenau v. New Brunswick and Gamon Meter Co. , 51 N.J. 130 (1968), held that recovery for property damages sustained as a result of a defective water meter, installed some 14 years prior to the incident by the municipality, was proper under the theory of products liability although there was no indication of "sale" of privity between the manufacturer and the plaintiff home-owner.

Yet, considering the foregoing, upon what legal foundation is this court prepared to rule on a matter presently undecided in this jurisdiction? Section 402A of the Restatement, Torts 2d, offers no direction, despite the fact that its rule has been adopted verbatim in New Jersey as the basis for actions sounding in strict liability in tort. Section 402A speaks in terms of applicability to "users and consumers",*fn1 and, although these terms appear to be self-limiting, the caveat to this section declares, "The Institute expresses ...

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