On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication May 19, 1995.
Before Judges Dreier, Villanueva and Braithwaite. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
Defendants, Pep Boys and its employees, appeal on leave granted from the denial of their summary judgment motion to dismiss plaintiff's compensatory and punitive damage claims. Plaintiff, Richard A. Parks, general administrator and administrator ad prosequendum of the Estate of Richard Parks, Jr., filed a wrongful death and survival complaint on October 9, 1991, claiming compensatory and punitive damages against defendants, Pep Boys and its employees, stemming from the death of Richard Parks, Jr. We granted leave for the filing of an amicus curiae brief by CIGNA Indemnity Insurance Company of North America which is a party in a declaratory judgment action that has been consolidated with this case.
On May 25, 1990, the decedent, Richard Parks, Jr., his younger brother and another boy decided to purchase freon because the brother had heard that it could "get you high." At that time, decedent was seventeen years old, the brother was fifteen, and the third boy was fourteen.
The three youngsters tried unsuccessfully to purchase the freon at a Channel store and perhaps a lumber yard that did not carry the product. They then proceeded to the Pep Boys store in Howell Township, New Jersey because it is an auto parts store, and the brother knew that it would carry freon which is used in automobile air conditioning systems. They pooled their money to buy as many cans of No.12 freon as they could afford.
The youngsters determined that the third boy should make the purchase since he had a mustache and looked older than his age, and the brother was afraid to make the purchase. The third boy purchased two cans of freon from the cashier who did not question him about his age or the purpose of his purchase. The boy claimed that he did not see any signs restricting the sale of freon. Realizing that he had purchased the wrong kind of freon, he went back into the store to return the two cans. Patricia Stallworth, an assistant manager, (the boy recalled a male assisting him) directed him to where the freon was located and then completed the exchange for three other cans of freon. He explained to Stallworth that he needed freon without an oil additive. He again was not asked for any identification, although Stallworth had inferred that he was of age because he had been waited on before and looked older.
The boy who purchased the freon left the area, and two other boys joined decedent and his brother. The two Parks youngsters and the other boys went to an area between the VFW building and a metal shop after obtaining a hose and auto air conditioner recharge kit from one of the boys. The brother stated that he saw a warning on the can about inhaling and a skull and bones but "paid no attention to it." The warning on the back of the can was contained in a small box at the bottom of the can. It stated:
DELIBERATE INHALATION OF THE CONTENTS IN THIS CAN IS EXTREMELY DANGEROUS. DEATH CAN OCCUR WITHOUT WARNING.
They then took turns inhaling or "huffing" the freon. Two of the boys claimed that the decedent had also inhaled freon earlier in the day.
The brother and the other boys became nauseated and stopped "huffing." Decedent, who had asthma, was told to stop inhaling, but he continued to take eight to twelve additional hits. Decedent then fell over and could not be resuscitated at the VFW or the hospital, and he died. The cause of death was "acute freon toxicity."
The Pep Boys chain of stores had a policy that it would not sell freon to anyone under 16 years of age, and anyone who was of questionable age would be required to show identification. The assistant manager knew of the policy from a training program conducted by the manager. She claimed she was told that the policy was based on state law and that she knew inhaling freon could cause a "high." The store claimed it had signs posted that the store would not sell freon to persons under sixteen years of age.
A Pep Boys "Branch Notice" of March 14, 1989 warned of the "high" created by freon that could cause death and further stated:
ALL STORES SHOULD TAKE EVERY PRECAUTION NECESSARY TO INSURE THAT YOUR STORE DOES NOT SELL REFRIGERANTS TO ANY PERSON UNDER 16 YEARS OF AGE.
All managers are to make sure ALL store personnel, especially cashiers, read this notice.
POST ON YOUR STORE'S BULLETIN BOARD.
Steven Greenberg, the author of the notice, stated that the notice was prompted by information he had read about the dangers of inhaling freon and a police request not to sell it to minors. The store manager was responsible for disseminating the information in the notice, but it is unclear whether this policy was communicated to all employees orally, in writing, both or neither in the case of some employees. There is also the question of whether the Branch Notice was posted or kept in any manual.
Decedent's death brought attention to the problem of inhaling freon. The New Jersey Legislature responded by amending N.J.S.A. 2A:170-25.12 to prohibit all sales of freon to persons under the age of eighteen.
The complaint alleged causes of action for negligence for the sale of freon to a minor; a violation of a N.J.S.A. 2A:170-25.9 through 25.13 by the sale of freon to a minor; negligence in training the store's personnel; and reckless indifference by the store and its employees to the harm the freon would cause. Plaintiff included no claims under the Product Liability Act for a manufacturing defect, a design defect or a warning defect, N.J.S.A. 2A:58C-2. There thus was no claim of a defective product or an inadequate warning. We had asked that these issues be briefed when we granted leave to appeal, and the parties complied. We then received the motion Judge's comprehensive supplemental opinion, as authorized by R. 2:5-6(c). It is clear that the motion Judge recognized there was no claim for damages resulting from a product defect, but only for negligence or recklessness in the sale of the product. The Judge also determined that "freon, like gasoline, was a generic product that could be bought in many stores. The alleged problem was not the product but rather its sale to a minor." *fn1
The court denied defendants' two summary judgment motions, the second of which encompassed all issues including proximate cause, punitive damages and the applicability of N.J.S.A. 2A:170-25.9 to 25.13. The Judge stated that he was denying the second motion because the statute put defendants on notice that the sale of freon was restricted even though the word "freon" was only later specifically added to the statute. The broad wording of the statute, "included but not limited to," did not exclude freon. Also, facts needed to be developed on the issue of proximate cause, and the Judge would not in a summary judgment motion accept defendants' claim that decedent's conduct was an intervening ...