On appeal from the Superior Court, Law Division, Union County.
Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Defendant appeals from a judgment in favor of plaintiffs Ilene Dixon and Robert Dixon, her husband, for personal injuries to Ilene Dixon. Robert Dixon sued per quod. The action was bifurcated, first being tried on liability and then on damages. R. 4:38-2(b). Both trials were to juries.
The evidence at the liability trial showed the following. On October 12, 1975 Ilene Dixon was a patron at defendant's bowling alley in Union, New Jersey. She had previously bowled there about ten times. In addition she had bowled at another bowling alley. She did not own either bowling shoes or a bowling ball. Defendant had shoes available for rental and supplied balls without specific cost to the patrons, the fee for the alley including the ball. On October 12, 1975 defendant had about 240 balls available. Ilene Dixon examined about seven to ten of them and selected one which she considered to be of an appropriate weight. In addition she determined that the holes in the ball fit her fingers. Her selection was made without assistance from defendant. She observed that most of the balls were scratched and chipped but that the one she selected, though chipped, was in better condition than most of the other balls.
After selecting the ball Ilene Dixon bowled several frames without incident. Eventually she was injured when she fell and a chipped portion of the ball cut her finger. As a result this action was brought.
Plaintiffs' complaint alleged that the accident was caused by the defective condition of the bowling alley and the defective condition of the equipment supplied. At the liability trial, however, plaintiffs sought to recover only on a theory that the ball was defective. The judge at the liability trial submitted the matter to the jury on written interrogatories. R. 4:39-1. The jury was instructed that defendant could be liable for negligence in failing to maintain a reasonably safe bowling ball or in strict liability for supplying a defective ball in an unreasonably
dangerous condition. The charge included an appropriate provision that defendant's dereliction had to be a proximate cause of Ilene Dixon's injury for plaintiffs to recover. The judge also charged the jury with respect to Ilene Dixon's conduct. On the negligence issue the jury was asked to determine whether she was negligent and if so whether her negligence was a proximate cause of the accident. On the strict liability theory the jury was asked: "Did plaintiff Ilene Dixon unreasonably and voluntarily proceed in the face of a known danger, which conduct was a proximate cause of the accident?" See Cartel Capital Corp. v. Fireco of New Jersey , 81 N.J. 548, 562-563 (1980); Suter v. San Angelo Foundry & Machine Co. , 81 N.J. 150, 158-164 (1979).
Both plaintiffs and defendant were found negligent but the jury allocated 80% of the negligence to plaintiff Ilene Dixon and 20% to defendant. Since her negligence was greater than defendant's plaintiffs could not recover for defendant's negligence. N.J.S.A. 2A:15-5.1. The jury found defendant liable on the strict liability claim but also found that Ilene Dixon had unreasonably and voluntarily proceeded in the face of a known danger. The jury then determined that each party's conduct contributed 50% to the happening of the accident. Thus plaintiffs could obtain judgment for 50% of the damages proven at the subsequent trial on that issue. See Suter v. San Angelo Foundry & Machine Co., supra , 81 N.J. at 158-164. A damage trial was later held and plaintiffs obtained a substantial verdict. Defendant now appeals from the liability judgment. It contends that the facts established at the liability trial did not justify the court in submitting the case to the jury on a theory of strict liability.
Strict liability is a doctrine which has developed primarily in actions against manufacturers and sellers placing a product in the stream of commerce. See, e.g., Suter v. San Angelo Foundry & Machine Co., supra , 81 N.J. at 168-169; Scanlon v. General Motors Corp. , 65 N.J. 582, 590 (1974); Henningsen v. Bloomfield Motors, Inc. , 32 N.J. 358 (1960). In some
circumstances it may be a basis of liability for producers of homes for sale. Schipper v. Levitt & Sons, Inc. , 44 N.J. 70 (1965). Strict liability has been said to be established when a plaintiff proves that defendant's product was defective in the sense of not being reasonably suitable, safe and fit for the purposes intended when it left defendant's hands and that the defect was a cause of plaintiff's injury. See Suter v. San Angelo Foundry & Machinery Co., supra , 81 N.J. at 168-171; Scanlon v. General Motors Corp., supra , 65 N.J. at 590-591. Liability does not depend on proof of the defendant's negligence. Cartel Capital Corp. v. Fireco of New Jersey, supra , 81 N.J. at 562-565. Imposition of strict liability has been justified on the basis that the manufacturer or seller is in a better position than the consumer to guard against defects in the product. See Suter v. San Angelo Foundry & Machine Co., supra , 81 N.J. at 169-174.
Not surprisingly attempts have been made by injured parties to expand strict liability in commercial or professional settings involving the use of personal property in which there was no transaction that could be called a pure sale. This is precisely such a case. Such application of the doctrine of strict liability has the potential to generate a substantial expansion of liability in cases of injury on a business premises because traditionally businesses have been liable for injuries to their invitees only when shown to have been negligent. See Bozza v. Vornado, Inc. , 42 N.J. 355, 359 (1964); Znoski v. Shop-Rite Supermarkets, Inc. , 122 N.J. Super. 243, 248 (App.Div.1973). Cases in which plaintiffs have sought to have strict liability imposed in situations not involving sales or including more than sales alone are Magrine v. Krasnica , 94 N.J. Super. 228 (Cty.Ct.1967), aff'd sub nom. Magrine v. Spector , 100 N.J. Super. 223 (App.Div.1968), aff'd o.b. 53 ...