[167 NJSuper Page 159] When a person is injured during experiments involving a patented machine alleged to contain design defects, may he sue on theories of strict liability and implied warranty, even though the injury-causing machine had not been sold to him nor has it ever been sold to date, if the creator of the machine advertises and demonstrates the machine with the apparent intent to market it in its existing condition?
Plaintiff sues defendant on the grounds of negligence, strict liability and implied warranty for injuries sustained in the operation of defendant's "Glass Can-Tainer" machine. Defendant moves for partial summary judgment on the strict liability and implied warranty counts of the complaint, arguing that the machine was never placed in "the stream of commerce." Bexiga v. Havir Mfg. Corp. , 60 N.J. 402, 410 (1972).
Plaintiff operates a small glass manufacturing business, commonly known as a "lamproom," from his garage. Defendant, now deceased, was a fair-sized glass manufacturer in another corporate name. Through the Luertzing Corporation defendant engaged, among other activities, in the creation and patenting of new inventions. Among them is the "Glass Can-Tainer," the injury-producing machine in this case.
The machine is a glass spinning device for use in the manufacture of glass containers. Defendant Luertzing hoped to revolutionize the canning industry with this patented invention in combination with another patented processing device that would cook containerized food much faster for food processers. Hopefully, marketing food in glass "containers" would prove more appealing to retailers and consumers. Unfortunately, the novel "Glass Can-Tainer," after nearly 15 years of development, has never successfully worked on a mass scale; hence, it has never been sold.
The only "Glass Can-Tainer" in existence is that involved in this case. Hoping that the softer glass used in plaintiff's "lamproom" would solve the problems with the machine, defendant contracted with plaintiff to aid in the further development of the machine. Plaintiff was to provide his facilities, glass material and his services and those of two of his employees; defendant was permitted to place his machine in plaintiff's shop for the purposes of the experiments. Defendant agreed to pay plaintiff $600 a day for his facilities and services.
From the deposition excerpts filed it is clear that plaintiff knew that the machine was still being developed. On the day of the injury, the first day of operation in plaintiff's shop, defendant supervised the operation of the machine. Plaintiff worked the front end, sweeping aside glass remnants, cutting glass and keeping the mold in the spinning machine clear. After at least 100 unsuccessful attempts to produce a container, plaintiff reached in the front cover to clean out a piece of glass from the mold. He told defendant to stay away from the control panel; however, defendant had started the machine, catching plaintiff's hands and fingers and causing injuries thereto. The failure to provide adequate safety devices to prevent such an incident is the alleged design defect.
Defendant advertised this machine among the canning and glass industries. He took the machine to various cities to demonstrate it in an attempt to sell his ideas. Relying on these facts and the fact that the "Glass Can-Tainer" was patented, plaintiff argues that a factual issue exists as to whether the machine was in the "stream of commerce," relying principally on Bexiga, supra , and Rains v. Cascade Industries , 269 F. Supp. 688 (D.N.J. 1967), rev'd 402 F.2d 241 (3 Cir. 1968).
The question presented is whether, notwithstanding the absence of a sale to plaintiff in this case, defendant's efforts to sell his invention elsewhere sufficiently place the product in the "stream of commerce" to cause the implied warranty of fitness for a particular purpose, N.J.S.A. 12A:2-315;*fn1 and the provisions for strict liability contained in § 402A of
Restatement, Torts 2d (1965),*fn2 to apply in this case. These provisions are set forth in the footnotes.
That a sale or leasing arrangement is not involved in this case as in the usual run of cases, e.g., Henningson v. Bloomfield Motors, Inc. , 32 N.J. 358 (1960); Cintrone v. Hertz Truck Leasing, etc. , 45 N.J. 434 (1965), does not end the inquiry; nor does the fact that defendant was not a "mass producer" of this machine shield him from warranty or strict liability, e.g., Patitucci v. Drelich , 153 N.J. Super. 177 (Law Div. 1977). As a "supplier" of a chattel, the policy considerations supporting strict liability and liability based upon implied warranties seemingly apply to this defendant. Magrine v. Krasnica , 94 N.J. ...