For reversal -- Chief Justice Hughes and Justices Jacobs, Sullivan and Clifford. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. (dissenting).
[65 NJ Page 586] This products liability case calls upon the Court further to explicate the nature and quantum of proof necessary to establish the elements of a defect existing in the hands of the manufacturer and retailer in an action for personal injuries resulting from a vehicular accident, based on strict liability in tort. Procedurally, the case comes here this
way: the trial judge granted defendants' motions for judgment at the close of all the evidence; the Appellate Division, in an unreported opinion, reversed and remanded for a new trial; and we granted defendants' petitions for certification, 64 N.J. 311 (1973). Our approach to the problem requires a review of the evidence in some detail.
In mid-July 1968, defendant I. J. Demarest, a Chevrolet dealership (hereinafter Demarest), delivered a new Chevrolet Impala nine-passenger station wagon to plaintiff, Michael Scanlon. After delivery the automobile was serviced twice by Demarest, on October 18, 1968 and February 25, 1969. On the latter date the odometer indicated the vehicle had been driven 2,995 miles.
On Saturday, March 29, 1969 plaintiff, a resident of Westwood, New Jersey, drove the station wagon with his brother-in-law, Sean Rogan, as a passenger, to the Bronx, New York, to buy some wood paneling for the Scanlon home. They were on the return trip to plaintiff's house at 4:30 P.M. when the accident occurred on Forest Avenue, a four lane north-south roadway in Emerson, New Jersey. It was still daylight, the weather was clear, and the asphalt roadway was dry.
Plaintiff testified that he was traveling northbound at about 25 miles per hour. Immediately prior to the accident he had his foot on the brake while going down a slight decline. The station wagon was in the left or fast lane and was passing a slow-moving car in the right lane. At the bottom of the downgrade where the road levels out, plaintiff took his foot off the brake and gave the engine some gas. He described the results as follows:
At the time I put my foot on the accelerator and increased speed, the station wagon just took off at an awful pace. It went crazy. I used the word. And I immediately applied my brake. The rubber was burning on the car. I could smell the tires. And I travelled 560 feet and wound up hitting a pole.
The vehicle swerved from the northbound fast lane across the southbound fast and slow lanes and went partially onto
the sidewalk. It then came back across the four lanes and collided with a telephone pole off the northbound lanes on the east side of the roadway.
Plaintiff said that when he depressed the accelerator approximately 25% of the way to the floor, the station wagon "took off like a jet" and "started to go erratic." He estimated it was traveling at least 50 to 60 miles per hour even though he had applied the brakes and they were making noise. The vehicle picked up speed until it was stopped by the collision with the pole.
Plaintiff stated that he did not think he turned the steering wheel to the left. When pressed by defense counsel as to how the station wagon went in that direction, Scanlon replied:
Because it was going at such a fast pace and the car wouldn't stop for me, and I got scared, I guess, and lost control of it.
However, he admitted that after the accident he did not mention any malfunction of the vehicle in describing the occurrence to the investigating police officer whom he told he had simply lost control. Likewise, no mention of anything being wrong with the station wagon was made to Demarest, the seller, upon a return visit some six months later.
At the time of the accident plaintiff estimated that the nine-month old vehicle had traveled approximately 4000 miles. His wife was the principal operator. While he maintained that the only adjustments made on the car were done by the dealer, Demarest, counsel stipulated that plaintiff could not testify as to whether his wife had ever had the carburetor adjusted by the gas station where they traded. Mrs. Scanlon was not called as a witness.
The passenger's version of the details of the accident was basically consistent with that of the plaintiff.
Jesse Fisher, an expert witness called by plaintiff, never examined the Scanlon station wagon or any of the parts thereof. Consequently, his testimony as to the existence of
a defect was limited largely to responses to hypothetical questions. In Fisher's opinion the plastic fast idle cam in the carburetor "broke, and that jammed the carburetor linkage in such a way that the carburetor would not respond when the driver took his foot off the gas pedal and the engine ran away." The result, he believed, would be to "hold the accelerator open only to the point the accelerator was at the time this phenomena occurred." In other words if plaintiff had depressed the accelerator 25% when the plastic piece became lodged, the linkage would be jammed so that no greater than 25% of the flow capacity of the carburetor could be called into use. The expert offered no hypothesis as to how or why the plastic cam broke and in fact never said in so many words that it was defective, although that was the purport of his testimony. He conceded that a photograph of what was said to be the cam in question showed it to be intact and unbroken, the clear inference being that if indeed that photograph accurately represented the cam in question, his opinion of the accident's cause would fall with the collapse of the hypothesis upon which it was based.
On defendant's case evidence was introduced establishing a chain of possession of the cam in question. Through photographic evidence, including the photograph used in cross-examining plaintiff's expert and the cam itself, there was proof that it was the original equipment on the station wagon rather than a replacement, and that it was "intact, undamaged, and in one piece" after the accident. The owner of the body shop which had purchased the wrecked station wagon and repaired it (but had done nothing by way of repair to the carburetor) said he drove the vehicle himself for about a week after it had been fixed and it operated "all right." Depositions of the unavailable police officer revealed the existence of tire marks on the road tracing the erratic course of the station wagon, and confirmed plaintiff's statement to the effect that he "lost control" of the vehicle.
As indicated above, it was in this posture of the proofs that judgment was entered for defendants on their motions,
reversed by the Appellate Division, and the case is here by our grant of certification, R. 2:2-1(b).
The doctrine of strict liability in tort is firmly established in the law of this state. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960); Santor v. A & M Karagheusian, Inc., 44 N.J. 52 (1965); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434 (1965); Rosenau v. City of New Brunswick and Worthington Gamon Meter Co., 51 N.J. 130 (1968); Realmuto v. Straub Motors, Inc., 65 N.J. 336 (1974). Under this doctrine manufacturers and retailers are liable for damages if the product left their hands in a defective condition proximately causing the mishap. Thus, a plaintiff in a strict liability case must establish that the product was defective, that the defect arose while in the control of the defendant,*fn1 and that the plaintiff suffered injury thereby. See Jakubowski v. Minnesota Mining & Manufacturing, 42 N.J. 177 (1964); Newmark v. Gimbel's Incorporated, 54 N.J. 585 (1969); Corbin v. Camden Coca-Cola Bottling Co., 60 N.J. 425 (1972); Prosser, Law of Torts (4th ed. 1971) § 103.
A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used. Santor v. A & M Karagheusian, Inc., supra, 44 N.J. at 66-67; see Collins v. Uniroyal, Inc., 64 N.J. 260, 271-272 n. 6 (1974) (dissenting opinion). Establishing this element requires only proof, in a general sense and as understood by a layman, that "something was wrong" with the product. As a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes. However, additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it.*fn2 See, e.g., Henningsen v. Bloomfield Motors, Inc., supra, 32 N.J. at 409 (steering malfunction); Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 452 (brake failure); Sabloff v. Yamaha Motor Co., ...