Ackerman, Harold A., J.s.c.
This action is a products liability case. On May 27, 1970 plaintiff Carol D'Arienzo applied a product known as Miss Clairol Shampoo Formula Hair Coloring No. 44S Coppertone to her hair and scalp. As a result, she suffered damage to her hair and injuries to her scalp and face. Because of the alleged negligence and breach of express and implied warranties on the part of the defendants, plaintiffs seek damages. The matter is before the court on a motion for summary judgment in which defendants Clairol, Inc. and James Wholesale Drug Co., Inc. seek judgment in their favor based upon the alleged contributory negligence of plaintiff Carol D'Arienzo.
The allegation of contributory negligence is bottomed on plaintiff's failure to perform the preliminary patch test as set forth in the directions for use of the product. The directions require that the test be performed before each application of the product. The gravamen of this charge is that but for this failure to perform the test no injuries
would have been sustained since, had she performed the test, she would have discovered her sensitivity to the product and refrained from using it. The proofs reveal that plaintiff had first used Miss Clairol some two years prior to the subject incident and that use continued intermittently during the intervening period. Immediately prior to using the product the first time, she performed the patch test and the reaction was negative. She suffered no adverse effects from the product during the entire period of use until the time of the subject incident.
The instant case presents a novel question of whether the defense of contributory negligence may be asserted to summarily preclude the prosecution of a suit involving an allergic consumer who relied on her personal history with a product in failing to perform a preliminary patch test. Inextricably intertwined with this question is that of whether the directions for the use of this product were of such a nature as to legally foreclose such reliance. Though the questions are novel and intriguing, determination of the issues must be made within the narrow framework in which they are here presented; that is, whether plaintiff's conduct so deviated from that of the ordinary prudent person that reasonable men could not disagree as to her negligence.
Initially, it must be noted that this defense is available in products liability cases under Maiorino v. Weco Products Co., 45 N.J. 570 (1965).
Simply stated, we are of the view that where a plaintiff acts or fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his hands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover. In short, in our judgment the well known principle of contributory negligence in its broad sense is sufficiently comprehensive to encompass all the variant notions expressed in the cited cases as a basis for refusing plaintiff a recovery when his own lack of reasonable care joined or concurred with the defect in the defendant's product as a proximate cause of the mishap and his injury. A manufacturer
or seller is entitled to expect a normal use of his product. The reach of the doctrine of strict liability in tort in favor of the consumer should not be extended so as to negate that expectation. [at 574]
At the same time, it is clear that this defense is sometimes barred where considerations of policy and justice dictate. Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 412 (1972); Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 473 (1969).
Since defendants seek summary judgment based upon the defense of contributory negligence, we would do well to examine these two notions so as to set forth the conceptual lines which circumscribe this form of relief. On the issue of summary judgment, the landmark case in New Jersey is Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954), wherein the court said that "it is the movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact." Similarly, our Supreme Court said in Ruvolo v. American Cas. Co., 39 N.J. 490 (1963):
It is a matter of common knowledge that such judgments are to be granted with extreme caution. The moving papers and the pleadings are to be considered most favorably to the party opposing the motion. All doubts are to be resolved against the movant. [at 499]
The defense of contributory negligence has found a similar footing in our law. Our courts have been loathe to take this question from the jury and declare a plaintiff's conduct contributorily negligent as a matter of law. Although a plethora of cases have been written covering this topic, perhaps the clearest expression of this judicial reluctance is found in Battaglia v. Norton, 16 N.J. 171 (1954). There the court said:
But contributory negligence is an affirmative defense to be proved; and ordinarily the issue is one for the fact-finding tribunal. Such is the case where different minds may reasonably come to different conclusions as to the facts or may reasonably disagree as to the inferences
derivable from the facts, controverted or uncontroverted. Kaufman v. Pennsylvania Railroad Co., 2 N.J. 318 (1950); Mellon v. Pennsylvania-Reading Seashore Lines, 7 N.J. 415 (1951); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210 (1954). Only in the clearest case of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law for decisive action by the court. Care is to be taken that the reasonable man be not endowed with attributes which properly belong to a person of exceptional perspicuity and foresight. [at 179; emphasis added]
See also, Hickman v. Dutch Treat Restaurant, Inc., 3 N.J. 460, 465 (1950). On the closely related question of proximate cause, see Martin v. Bengue, Inc., 25 N.J. 359, 374 (1957), wherein the court held that questions of ...