For affirmance -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For reversal -- None. The opinion of the Court was delivered by Hall, J.
[65 NJ Page 339] This product liability case derives from the sale in 1970 of a used 1965 automobile to plaintiff Salvatore Realmuto (the buyer) by the defendant dealer. The suit was for personal injuries to the buyer, with a per quod claim by his wife, due to an accident claimed to have resulted from malfunction of the car's accelerator-carburetor mechanism. The dealer had installed a rebuilt carburetor prior to the sale, which installation required disconnection and reconnection of the mechanism. Plaintiffs' factual thesis was that this work had in some way been done so as to result in a defect which caused the malfunction. They presented no expert testimony and the evidence was entirely circumstantial.
The case raised the novel question of the applicability of strict liability in tort, Restatement, Torts 2 d § 402A (1965), to a retail seller of a used chattel. Plaintiffs' complaint and the paragraph of the pretrial order specifying the issues to be determined were limited to two theories -- negligence and strict liability. Although clearly intended as a "defect" case, for some reason not manifest in the record, the theories of express warranty and implied warranty of merchantability under the Uniform Commercial Code, N.J.S.A. 12A:2-313 and 314, appear to have crept in at trial. Thereby further questions of scope and applicability of the claimed warranties in the circumstances of the sale of a used chattel and the interrelation of theories of strict liability in tort and of actions under the Code necessarily became involved.
None of these questions was passed upon in the trial court. Rather the trial judge granted the dealer's motion for judgment at the end of the case, R. 4:40-1, concluding that, under any theory of action, plaintiffs had shown only the occurrence of an accident and that there was insufficient evidence of "the proximate cause of the accident" to take the case to the jury, i.e., that the proofs were not adequate to permit a jury to find that the accident was caused by the alleged defect or the breach of a warranty. The Appellate Division reversed by a divided vote in unreported opinions. The majority held the evidence was sufficient to withstand the motion for judgment, apparently treating the case, although the opinion is not entirely clear, as an action based on breach of an express warranty. The dissent agreed with the trial judge, but dealt with the case principally as one grounded in strict liability in tort. Defendant's appeal is here as of right by reason of the dissent. R. 2:2-1(a)(2).
The buyer's testimony took this tack. When considering buying the car, defendant's salesman provided a road test during which the motor "sputtered." The salesman said it had to do with the carburetor and would be fixed. The buyer then signed a purchase agreement and the car was delivered
to him a few days later, at which time he was advised a rebuilt carburetor had been installed. The vehicle operated satisfactorily during the next five days involving about 140 miles of driving. On the sixth day while coming home from work, the motor "sputtered" again. He applied some pressure to the accelerator pedal and in a matter of seconds the car generated tremendous speed. The pedal did not release when foot pressure was removed and manual lifting of the pedal had no effect on the acceleration of the motor. The vehicle careened down the road and could not be controlled. It finally struck the center barrier, overturned and was substantially demolished. The buyer's later inspection of the remains disclosed, he said, that the accelerator-carburetor linkage was bent and the spring, designed to return the pedal to a raised position and at the same time close the carburetor intake valve so that the motor would only idle, was missing.
The buyer's only testimony about any express warranty -- and, indeed, the only explicit reference in the entire transcript to the subject of warranties, except for the judge's summary of the bases of action in his oral decision on the motion for judgment,*fn1 is found in eight lines wherein he identified as the salesman's writing the phrase "30 day warranty" found on the face of the sales agreement and stated that the salesman told him "it would cover parts and labor for thirty days. One hundred per cent."*fn2
Defendant's general manager, a former mechanic and its only witness, did not attempt to explain the cause of the mishap. The demolished automobile was not examined by the defendant who knew nothing of the accident until a claim was made quite a time thereafter when the car was apparently no longer available. The witness described the intended functioning of the carburetor, accelerator pedal and linkage mechanism and agreed that the linkage had to be disconnected and reconnected when the rebuilt carburetor was installed. The mechanic who did the work could not be identified. The manager admitted that, if the spring were missing, the pedal would not return of itself to a raised position and the carburetor valve would remain open, but said this could be corrected by the driver lifting the pedal with his foot, which the buyer had testified was unavailing in this instance. Defendant made no effort to show that any conduct of the buyer contributed to the accident.
We are convinced that, from the evidentiary standpoint, the majority of the Appellate Division was correct in concluding that there was sufficient evidence and permissible inferences therefrom to withstand defendant's motion for judgment and that this is true with respect to all conceivable bases of action against the dealer. The approach on such a motion is, of course, consideration of all the evidence and legitimate and reasonable inferences therefrom in the light most favorable to the plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). The question in all instances is one of factual causation -- the relation of the harm to some act or omission of the defendant. The inference is practically
irresistible, in the light of defendant's testimony as to the makeup and functioning of the carburetor-accelerator mechanism, that the accident was caused by some malfunction of that mechanism resulting in uncontrollable acceleration of the vehicle. In view of the fact that defendant, in installing the rebuilt carburetor, concededly disengaged and reengaged the linkage mechanism between the carburetor and the accelerator pedal, that the violent and dangerous malfunction occurred within a relatively few miles thereafter and that defendant offered no other explanation for the mishap, a jury might properly infer, ...