Steinbrugge, J.c.c., Temporarily Assigned.
[123 NJSuper Page 600] This is a products liability action in which the plaintiffs allege that defendants breached implied warranties of merchantability and of fitness for a particular purpose under the Uniform Commercial Code. N.J.S.A. 12A:2-314, 12A:2-315. Although not specifically pleaded by name, the theory of strict liability in tort, as set out in the Restatement, Torts 2d, § 402A, is equally applicable to the situation at bar. Justice Francis has urged that warranty language be avoided in products liability actions, and that
the pleadings allege what is in fact the essence of such a suit, which is an action in tort and not in contract.
[P]ractical administration suggests that the principle of liability be expressed in terms of strict liability in tort thus enabling it to be applied in practice unconfined by the narrow conceptualism associated with the technical niceties of sales and implied warranties. [ Newmark v. Gimbel's, Inc. , 54 N.J. 585, 595 (1969)]
The question for consideration concerns the effect that should be given to defendant Ford Motor Company's request to charge No. 11. The requested charge is as follows:
The standard of safety with respect to the liability of the manufacturer of a product apart from negligence is similar to that described as the implied warranty of merchantability, and with respect to the allegation of liability against the defendant apart from negligence, the plaintiff has the burden of establishing, along with causation, that the product was unreasonably dangerous and not reasonably fit for the ordinary purpose for which such articles are sold and used because of a defect therein which arose out of the design, preparation or manufacture of the article while it was in the control of the manufacturer.
The italicized phrase is evidently drawn verbatim from § 402A of the Restatement , which states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. [Italics supplied]
The court holds that the additional element of "unreasonable danger" is not a valid part of the concept of strict liability in tort in the ...