Newmark v. Gimbel’s Inc.
54 N.J. 585 , 258 A.2d 697 (1969)

  • Newmark went to Gimbel’s beauty parlor. The beautician applied some hair product that caused all of Newmark’s hair to fall out. Newmark sued for product liability.
    • The product had a warning, but the beautician never showed the warning to Newmark or asked her questions about her sensitivity to the product.
  • The Trial Court found for Gimbel’s. Newmark appealed.
    • Newmark argued that the product was defective since there was an implied warranty that it was safe.
    • The Trial Court found that Gimbel’s was rendering a service, not making a sale. Therefore any product liability claims are not applicable.
      • The doctrine of strict liability only applies to defective products, not defective services.
  • The Appellate Court reversed. Gimbel’s appealed.
    • The Appellate Court found that there might be an implied warranty for the product itself.
  • The New Jersey Supreme Court affirmed the Appellate Court’s decision and remanded for trial.
    • The New Jersey Supreme Court noted that if Newmark had bought the product in a store and applied it herself, there is no question she would have a claim of product liability based on an implied warranty.
      • Gimbel’s not only sold Newmark the product, they also applied it! So if anything, their liability for the product should increase rather than decrease.
    • The Court suggested that Gimbel’s should sue the manufacturer of the product, who should bear the primary responsibility.
    • The Court noted that there was a difference between service providers like beauticians, who provide optional services, and doctors, who provide essential services. The Court found that essential service providers should not be held strictly liable.
  • This case is a good example of a hybrid transaction, that’s a combination of a service and a product.
    • You can’t be held strictly liable for providing a service. For example, if a doctor treats a patient and the patient dies, the doctor is not strictly liable, he is only liable if there is evidence of negligence in the way they treated the patient. (See Restatement of Torts §19(b)).
    • On the other hand, you can be held strictly liable for providing a defective product. There is no need to show negligence.
    • In this case, the Court found that in a hybrid transaction one can be held strictly liable.