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Hull v. Getty Refining & Marketing Co.

Decided: July 1, 1985.

MICHAEL HULL, III, PLAINTIFF-CROSS-APPELLANT,
v.
GETTY REFINING & MARKETING CO., T/A GETTY OIL; EASTERN GASOLINE RETAILERS, INC., T/A GETTY OIL; AND DONALD GRAY, DEFENDANTS-APPELLANTS, AND LIVINGSTON INDUSTRIES, INC., BERNARDI BROS., INC., SOUTHERN PRIDE, INC., CAZA EQUIPMENT OF NEW JERSEY, INC., AND OKUN INDUSTRIES, INC., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Monmouth County.

Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.

Furman

In an initial trial which ended in a jury disagreement, the trial court granted dismissals on motion at the close of the proofs in favor of all defendants except Getty Refining & Marketing Co. and Eastern Gasoline Retailers, Inc. both trading as Getty Oil (Getty) and Donald Gray individually. The trial court also barred as a matter of law the defense of comparative or contributory negligence and plaintiff's claim for punitive damages. In a retrial against Getty and Gray for compensatory damages only, with the defense of comparative or contributory negligence barred, the jury returned a verdict of $450,000 in compensatory damages against Getty and Gray.

Getty and Gray appeal raising two issues: that the trial court erred in dismissing all claims and cross-claims against their co-defendants and in striking the defense of comparative or contributory negligence. Plaintiff cross-appeals from the dismissal of his punitive damage count.

Plaintiff's action against Getty and Gray sounded in negligence for not having a rubber deflector cup at the tip of a wand attachment provided for use by customers in Getty's coin-operated self-service car wash. The wand was attached to a hose and emitted water under pressure. Because the wand would not emit water under pressure without the rubber cup, Gray, the car wash manager, made an adapter to fit the nozzle into in order to continue operations while awaiting delivery of a replacement wand with rubber cup. In attempting to wash his car at Getty's car wash, plaintiff suffered a serious eye injury. The wand flew up suddenly with what he described as a surge

of "tremendous power" when he turned on the rinse cycle. Its bare metal tip, lacking the rubber cup as a safety device, penetrated the cornea of his left eye.

We agree with the trial court that there was insufficient evidence from which a jury might have determined that negligence by plaintiff was a substantial factor in the causation of his accident and injury. According to the evidence in the light most favorable to Getty and Gray, see Dolson v. Anastasia, 55 N.J. 2, 5 (1969), he violated no instructions; he held the wand by its handle and set the rinse cycle on the rotary control with his other hand; he had no forewarning that the wand would fly up with an uncontrollable surge of power, striking his eye.

We also agree with the trial court's dismissal of plaintiff's punitive damage count. In the light most favorable to plaintiff, he offered no proof to support a verdict of malicious or wantonly reckless wrongdoing by Getty or Gray, in willful disregard of plaintiff's rights, see Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984).

We are constrained to reverse the trial court's dismissals in favor of all defendants other than Getty and Gray and to remand for further proceedings. Plaintiff's theory of liability against the other defendants was strict product liability. According to a safety engineering expert on behalf of plaintiff, a trigger device for wands was the "state of the art of the industry" prior to 1981, the year of plaintiff's accident. By releasing pressure on the trigger, all flow of water within the wand would stop. The trigger mechanism was developed because of the recognized hazard of "flying wands." In the expert's opinion, the accident to plaintiff would not have occurred if the wand which he used had had a trigger mechanism "to absorb the surge of water pressure and prevent the flight of the wand."

Defendant Bernardi Bros., Inc. (Bernardi) and its corporate owner, defendant Southern Pride, Inc. (Southern Pride), were

charged with strict product liability as manufacturer of the triggerless wand which plaintiff used, and defendant Caza Equipment of New Jersey, Inc. (Caza) as its distributor. Those three defendants should have been held in the first trial for a jury determination of their liability in manufacturing or distributing a wand not reasonably fit, suitable and safe for its ...


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