Plaintiff was injured while participating in an inter-scholastic football game. Along with his parents, he filed an action against the Moorestown Township Board of Education (the board) for the negligent coaching techniques of its coaches. They also sued the manufacturers of the football helmet he was wearing and two subsequent reconditioners of the helmet, under the legal theories of breach of warranty and strict liability. The two reconditioners, Olympic Reconditioning Company (Olympic) and Medalist Industries, Inc. (Medalist), have each moved for summary judgment under R. 4:46. I conclude that both applications must be granted as to breach of warranty, but denied as to strict liability as a matter of law.
The facts relevant to these motions are as follows:
On October 22, 1979, plaintiff sustained severe injuries in a football game when he used his head as the initial point of impact in attempting to tackle a ballcarrier on an opposing team. The helmet was manufactured by defendants Brunswick Corporation (Brunswick) and MacGregor Manufacturing Company (MacGregor) in 1972. It was then sold to the board, which supplied it for the use of its student football players. Each year thereafter the board sent the equipment to a reconditioning company for repair and post-season storage. The reconditioning process consisted of inspection of the helmet, replacement of broken parts from spare parts supplied by the manufacturer, repainting (if requested), cleaning and sterilization.
A label inside the helmet worn by plaintiff indicated that it was "reconditioned for the 1975 playing season" by Medalist. A second label inside that helmet advised: "CAUTION: Serious neck or head injury can result while playing football despite our efforts to protect the individual. OLYMPIC RECONDITIONING COMPANY." Olympic reconditioned football helmets for the board before the 1977, 1978 and 1979 playing seasons. The manufacturers never placed any warning in the helmet.
For purposes of these motions, both reconditioners concede that the lack of an effective warning made the helmet worn by plaintiff "not reasonably fit, suitable and safe for its intended or reasonably foreseeable purpose." Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 169 (1979). Thus the helmet was defective. However, movants contend that since they merely refurbished -- as opposed to remanufactured -- the helmet, they cannot be responsible to plaintiff under either a breach of warranty or a strict liability theory of recovery. No claim grounded in negligence has been advanced against them.
Essentially, Olympic and Medalist submit that since they did not create or expand a product which then was placed in the stream of commerce, but merely serviced an existing product, they are not sellers or remanufacturers. Reasoning that each status is a factual requisite to the two respective causes of action, they urge entitlement to summary judgment as a matter of law. I shall discuss each cause of action in turn.
Plaintiff alleges breaches both of express and implied warranties. The express warranty is one which is said to exist under N.J.S.A. 12A:2-313(1) which provides:
Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
The board, as set forth on the voucher ordering the service, requested that the reconditioners "recertify NOCSAE [National Operating Committee for Standards of Athletic Equipment] helmets." The direction to recertify became a part of the contract between the board and the reconditioners as a consequence of their acting on the voucher. If, in ...