Gladden v. Cadillac Motor Car Division

GLADDEN, PLAINTIFF-RESPONDENT, VIOLA v. CADILLAC MO- DIVISION, CORPORATION, TOR CAR GENERAL MOTORS A CORPORATION LICENSED TO DO IN THE BUSINESS STATE JERSEY, DEFENDANT, UNIROYAL, INC., OF NEW AND DE- FENDANT-APPELLANT, CADILLAC, AND LEX DEPP DE- FENDANT.

Argued November Decided June1980. David L. argued Menzel the cause appellant (Stryker, Dill, Tams & attorneys).

Daniel R. argued Coburn respondent (Coburn cause for & Bronstein, attorneys). opinion of the Court was delivered

HANDLER, J. Plaintiff seeks to recover Uniroyal, (hereinafter from Inc. “Uniroyal”), a manufacturer, national automobile tire property damages for the total loss of her upon automobile based breach warranty covering the automobile’s tires. Plaintiff right claimed that the rear tire failed while the car being was brother, driven by her causing the car to leave the road and strike guardrail and tree. disputed that the tire’s failure under the circumstances constituted a breach of its that, event, It also asserted in its replace- a refund for or was limited to warranty breach such a Uniroyal, v. authority of Collins of that tire. On ment this limitation of ruled that (1974), the trial court 64 N.J. 260 by the ruling, is this sustained ineffective. liability was appeal. of this Division, is the focus Appellate I Coupe de of a 1974 was the owner Plaintiff Viola Gladden brother, Larry younger Her automobile. hardtop Ville Cadillac Carolina Brown, from South driving was the automobile and, while trav- Morristown, Jersey September on New Harrisburg, Pennsylvania, the 22 near easterly on Route eling and tree. roadway guardrail and struck a left the automobile heard a road, passenger his both Brown and As the car left noise; was later right rear tire “big pop” “pow-like” scene of the accident. feet from the discovered about two July in her brother new automobile for bought Plaintiff Brown purchase. the actual although Brown handled “top-notch getting a thought that he was that he had testified and he therefore the “better tires” car” which should have that steel- testified radials.” He further requested “steel-belted newspa- on television radial tires were advertised belted brand of any particular request he did not although pers the tires was with tires, Uniroyal tires. Distributed he was sold cover as “OWN- on the front large letters a booklet described GUARANTEE,” a section which contained AND ER’S GUIDE BELT- STEEL bold, encaptioned “UNIROYAL printing red that he Brown testified RADIAL TIRE GUARANTEE.” ED he had booklet and that through” guarantee “skimmed had its contents. thought that he understood automobile, the loss of the damages for Seeking property only Motor Car the Cadillac against a lawsuit plaintiff brought Cadillac, Depp Lex Corporation, Motors Division of General Depp Lex for defendant Summary judgment Uniroyal, Inc. against of action trial. The cause prior to granted Cadillac was fail- upon plaintiff’s dismissed Division was Motor Car Cadillac case. prima facie ure to establish a trial, theory liability against At plaintiff’s Uniroyal was predicated upon expert’s gone her claim that the automobile had right out of control and had the road after the left rear tire road, relating blew out either because of some factor to manufacturing, mounting, because of a defect in the dismounting expert of the tire. The defendant and its contend- that, ed roadway, after the automobile had left the the tire guardrail failed when the vehicle struck the and tree. The case jury was sent to the on liability, implied theories of strict warranty, express warranty. Answering special interroga- tories, but, the jury found that the tire was not defective that had, nevertheless, express warranty. breached its Uni- royal’s judgment notwithstanding motion for a the verdict was $6,250 denied and award of jury plus property interest for damage plaintiff’s car was entered. appeal, Uniroyal

On contended that the evidence of a breach inadequate was and that the trial court had erred in submitting jury. this issue to the It also asserted that its did not a constitute that the tires would not that, failure, fail but only promise if there were a tire the tire replaced purchase price would be or the would be refunded on apportioned reason, an basis. For that Uniroyal contended that the trial court ruling guarantee, had erred in that the and, damages, restricted its was as to unconscionable thus, unenforceable.

The Appellate unreported Division in an decision reversed on ground given the trial court had an incorrect or inadequate jury express warranty instruction to the on the question. It concluded a new trial should have been court, however, granted. appellate rejected Uniroyal’s con- respect tentions with validity remedy of the restrictions certification, guarantee. Uniroyal’s petition granted of the (1979), at 81 sought only question N.J. 285 review of the of the validity appears restriction which in the warran- ty-

II The initial question Uniroyal’s undertaking whether consti- tuted an express warranty. The Uniform Commercial Code seq., N.J.S.A. 12A:1-101 et (hereinafter “Code”), “UCC” or deals with the provides creation of warranties. as follows:

(1) warranties the seller are created as follows: by Express

(a) affirmation of fact or made the seller to the which Any buyer goods bargain relates to the and becomes of the basis of the creates an part goods that the shall conform to the affirmation or express warranty promise. (2) It is not to the creation of an that the seller use necessary express warranty “guarantee” formal words or such as “warrant” or that he have a specific intention to make a but an affirmation of the value warranty, merely goods purporting or a seller’s statement commenda- opinion merely goods tion of the does not create a [N.J.S.A. 12A:2-313J emphasize specific UCC Comments to this section that no warranty necessary part intention to make a if of the basis of bargain consists of. the seller’s affirmations of fact or 12A:2-313, N.J.S.A. descriptions goods. Comment 3. The Comments state further warranties rest on “dickered” aspects N.J.S.A. bargain. of the individual 12A:2- , 313 Comment 1. Particular reliance on such statements of description quality need not be shown and the issue 12A:2-313, normally will be a factual one. 3. Comment noted, As by Uniroyal pur- the booklet distributed with the chase of its steel-belted radial tires contained a section entitled “UNIROYAL STEEL BELTED RADIAL TIRE GUARAN- 40,000 expressly “guaranteed TEE.” It odometer [the tires] situations, specific miles” in three two of arguably apply to this case. protec- One such situation relates to “road hazard 40,000 tion” which furnishes within vehicle “[i]f odometer unrepairable impact miles the tire becomes due to breaks, other, snags, punctures cuts or . . . .” The referred “[g]eneral [guarantee,” applies as a a tire becomes “[i]f unserviceable, reason other than wearout or [those specific [guarantee] enumerated road hazards . . . .” in] though the can arise even express warranty An under Code 12A:2-313(2). Guar “warranty” is not used. N.J.S.A. word case law. Jersey warranties under New antees are viewed as Co., N.J.Super. 150 306 Equipment See Jutta’s Inc. v. Fireco Sales, Inc., 42 (App.Div.1977); v. Peter Tramontin Motor Adams Inc., Appel N.J.Super. (App.Div.1956). 319 In Jutta’s Division, calling guarantee “express late the manufacturer’s an express warranty. N.J.Super. it as an 150 guarantee,” treated Adams, Appellate 90-day Division held that a at 306. In guarantee parts constituted an repair sale, express warranty because it was made before the was given buyer anything wrong,” to the “in case went and had a tendency” “natural to induce the sale of the automobile. treated as N.J.Super. Similarly, guarantees at 319. were ex (1974). Uniroyal, 64 N.J. 260 press warranties Collins v. 421, 427, Korvette, Inc., McCarty Md.App. also v. E. J. See (tire guarantee (Ct.Spec.App.1975) express 347 A.2d Hence, warranty). legal significance Uniroyal’s it is of no that undertaking respect “guar with to its tires was denominated a “warranty.” obligation antee” rather than Its was an a understood, regardless Uniroy fairly if it could intent, representation al’s to constitute an affirmation capacity relating and to possessed quality the tires a certain performance. future provisions

The of the tire were included in the That AND GUARANTEE.” booklet deals “OWNER’S GUIDE characteristics, per- with extensively quality, capacity, states, formance of steel-belted radial tires. example, design provides superior radial tread mile- “[t]he age, rolling resistance . The tire traction and lower . . .” “engineered provide proper is said to be to balance” as to characteristics,” “performance g. mileage, certain e. “tread trac- tion, endurance, addition, hazard resistance.” In the book- road replete “guarantee.” “guar- let is with references word cover; displayed antee” is on the prominently very on first “40,000 page the owner is advised that the booklet contains mile guarantee provisions.” separate A section of the booklet alerts purchaser type bold “UNIROYAL STEEL BELT- GUARANTEE,” ED RADIAL throughout TIRE that sec- appears subject (e. tion the “guarantee” headings term both in g., Long,”) “What is Guaranteed And For How as well as in (e. descriptive language g., “guarantee “general eligibility,” guarantee,” guarantee.”) specifical- “tire This section also deals ly performance becoming with future in terms of a tire “unre- Moreover, pairable” or page “unserviceable.” another contain- ing forms,” “adjustment what is called claim denominated as “Uniroyal Passenger Mileage Belted Radial Tire Guaran- Steel tee Certificate.” exclusions,

In dealing guarantee a section with the states that warranties, it is a substitute for any express implied “other including any implied but not limited to warranties of merchant- ability particular purpose.” or fitness for a suggests, by This negative implication, guarantee the actually given that the purchaser express warranty itself constitutes an since it serves warranties,” and, to replace express further, “other that the guarantee was intended to be the equivalent functional ordinary implied warranties which relate generally product to quality performance. and

The taken as a firmly supports document whole the Uniroyal conclusion given express warranty that has an conjunction with the sale of its steel-belted radial tires. It does language so in spells undertaking out such an with sufficient and clarity specificity. Cf. Herbstman v. Eastman (1975) Kodak Company, (guarantees 68 N.J. of future performance specific). guarantee, presented must be The as expressed, representation constitutes an affirmation or that the possess tires a capacity quality relating to their ability to perform. communication, purchaser On the basis of this could reasonably expect that the tire if used in accordance with the Uniroyal unrepairable instructions would not become or unser 40,000 or, did, viceable within the first miles of normal use if it that consumer would be entitled to some form of redress.

Ill in this case there was Appellate Division determined that The warranty.1 brings of breach of This us to evidence sufficient appeal, namely, of the whether has gravamen effectively limited its for a legally and replacement of the express warranty to either breach purchase price. refund of the tire’s partial failed tire or a or full Uniroyal guarantee, given if literal effect language The damages recoverable for by Uniroyal, as contended would limit express warranty While the states that the warranty. breach of 40,000 miles,” it further “guaranteed tire is vehicle odometer guarantee clause that the tire will be provides general under the 8,000 charge “unserviceability” at if occurs within replaced no 40,000 miles, and, beyond mileage up miles “unservicea tire; similarly, if bility” pro charge will result rata for a new 40,000 “unrepairable” any point up the tire at miles becomes hazards,” pro for a rata warranty provides because of “road adjustment charge.2 under the the tire the issues at trial was whether the failure of 1One of dispute This circumstances came within the terms of the such a centered on whether a “blowout” had occurred and whether tire express warranty. Appellate Division noted

blowout was covered respect guarantee present in the case with to the that phenomenon the terms of the of “blowouts” were different from those considered Uniroyal, N.J.Super. (App.Div.1973), earlier decision of Collins v. Collins, specifically (1974). aff'd 64 N.J. 260 stated In service, passenger every guaranteed during when used in normal car tire “is blowouts, cuts, bruises, injury original against and similar the life of the tread (emphasis added). rendering N.J.Super. at 405 the tire unserviceable.” 126 By contrast, guarantee by made in the instant case does not the explicitly protection the road hazard include the term “blowout” either guarantee. general or the Appellate 2The Division concluded in was sufficient this case that there roadway by tire on the was an evidence to show that a blowout of the caused sufficiently “impact jury had not received clear instruc- break” but that the tions to determine whether or not a blowout had occurred in that manner. reason, For that the court remanded the case for a new trial. Since the inference, e., permit evidence in the case would also another i. the tire had break,” “impact failed or had a blowout unrelated to an this raises the question might as to whether such a failure or blowout nevertheless consti- part by way of warranty states further exclusion as follows:

4. WHAT IS NOT COVERED BY THE GUARANTEE a) guarantee. General Exclusions to all applicable parts or or loss failure or due to chain accident, fire, Unserviceability damage, racing, unrepairability run flat or theft, willful abuse. guarantee This is a under the conditions promise specified. is not a that tires will not fail. promise your guarantee given This in lieu all other or warranties, express implied including but not limited to warranties of or any implied merchantability

fitness for a It does not cover and particular purpose. consequential repairing replacing UNIROYAL’S is limited to or the tire in accord- guarantee. ance with the contained in this stipulations original.] [Emphasis These exclusions cut into deeply the substantive effect of the warranty relating capacity quality. to tire and If the failure of equates the tire “unserviceability unrepairability with or or loss,” “accident, fire, failure or but is caused an chain theft, abuse,” damage, run flat or willful the resultant deficien- cy of the tire not would be covered at all under the Thus, though express “unrepairabili- even warranty against the ty,” being applicable is first stated in the booklet as breaks, any resulting specifically impact snags, to failure from cuts, punctures warranty against “unserviceability” being applicable any any stated as failure for other reason “wearouts,” except general scope exclusion restricts the Moreover, coverage. though express warranty this even failure, unserviceability unrepair- deals with tire described as ability, guarantee is general exclusion section states that the Further, “not a tires will not fail.” [the] general exclusionary clause also that it is “in lieu of all states warranties,” implied other as well as the warranties of fitness, merchantability implied clearly warranties becoming general guaran- tute a tire “unserviceable for reason” under the Although at trial or on tee. none of the has raised this issue either parties given we deem it at appeal, opportunity appropriate parties new trial this of breach of under the theory express warranty present “general guarantee” clause. ordinarily are available to quality performance and relate purchaser. of only scope not with the exclusionary The clause deals is, whether and under coverage product performance—that fail—but also with the extent might what circumstances a tire Thus, general is described in the liability. guarantee of clause, relating quality warranty not as a exclusionary guaran- presentation in the initial performance implied as tee, merely but as “a under the condi- Further, exclusionary specified.” tions clause states consequential damages” “does not cover and that “liability repairing replacing is limited to the tire accord- guarantee.” stipulations ance with the contained this determining efficacy Uniroyal’s attempted dis In warranty, impor it is claimer and restriction of its affirmative differentiate between a disclaimer of and a tant to 3; 12A:2-719, remedy. limitation of Comment White N.J.S.A. Summers, 12—11, (1972). at 383 & Uniform Commercial Code § explain, As Professors White and a disclaimer clause Summers or limit seller’s warranties. White & used to exclude Summers, supra, at The limits the seller’s liabili 384. disclaimer ty by reducing the number of situations in which the seller can clause, exclusionary in breach of Ibid. An on the hand, other the remedies available to one or both restricts parties once a breach has been established. Ibid. express strong exclusion of warranties is complete 4; 12A:2-313,

ly disfavored in the UCC. See N.J.S.A. Comment Motors, Henningsen see also v. Bloomfield 32 N.J. (1960). engrafted upon express An war exclusion or limitation inoperative unreasonably ranties is to the extent its terms are given. with the warranties that are Real inconsistent Motors, Inc., (1974); 341 n.2 muto v. Straub 65 N.J. 12A:2-316(1). question warranty qualifications, this it is On implied treatment of warran compare instructive to Code warranties, including complete implied ties. The exclusion of particular warranties fitness for a merchantability and of under the Code. N.J.S.A. specifically permitted See purpose, is Nevertheless, the exclusion of an in order to effect 12A:2-316. language must clear merchantability, implied warranty of Code, moreover, expressly defines Ibid. The conspicuous. ... so term or clause written “conspicuous” to mean “[a] operate ought it is to person against a reasonable whom that 12A:1-201(10); see also N.J.S.A. it.” have noticed N.J.S.A. explicit- 12A:1-201, requirement no such is Comment 10. While of an respect with to a disclaimer ly imposed by the Code a disclaimer or inconceivable that such express warranty, it is which is other than clear and express warranty of an limitation and enforceable. regarded could be as valid conspicuous below, that concluded as well as the courts parties, The and limitations warranty disclaimers of whether the question upon damages for turns Uniroyal’s liability limit effectively here strongly influenced “unconscionability.” They were notions Uniroyal, v. our decision in Collins by in that direction killed in an Collins, husband was plaintiff’s In supra. failure of a tire by the ostensibly caused automobile accident for subsequent In a suit defendant. manufactured tort, the trial warranty and strict breach of limitation the defendant’s being unconscionable court excised as affirmed that tires. This Court 12A:2-719(3). at 261. 64 N.J. determination based on N.J.S.A. consequential while provides That section of the Code limited or excluded may be for breach of damages to dam- “unconscionable,” respect with such a limitation unless facie unconscionable.” injuries “prima ages personal to the weight in its conclusion gave also considerable Court on the seller’s advertisements buyer had relied evidence that life. Id. at 263. would save his that the tires embodied unconscionability presumption of Here the presumption because 12A:2-719(3) applicable is not N.J.S.A. damages for attempts to limit only to applies by its terms N.J.S.A. arising out of a breach personal injury only with a claim this case 12A:2-719(3). We deal however, mean, that consider damages. This does not property unconscionability are less relevant ations fairness proper when warranties which contain limitations on reviewing certain may be under circumstances ty damages. express warranty in an upon restriction interwoven “unreasonably inconsistent” guaranteeing performance could be and, therefore, inopera express warranty with the terms of the Moreover, always 12A:2-316(1). tive. See Court N.J.S.A. declaring the limita option appropriate retains the in an case of Inc. tion under 12A:2-302. See Jutta’s unconscionable Co., (conse supra, N.J.Super. v. Fireco Equipment at Owen, unconscionable); cf. quential damages clause Unico v. 101, (1967) (N.J.S.A. 50 N.J. court 125 12A:2-302 authorizes the to refuse clause it finds to enforce consumer contract which unconscionable). recognized principle This is also the outset ^t viz, 12A:2-719(3), may be “[consequential damages N.J.S.A. limited or is uncon or excluded unless the limitation exclusion scionable.” not, however, attempted

We or not need whether the resolve from a property limitation recoverable loss in this breach of is case unconscionable in the sense 12A:2-719(3). considered and There is an in Collins which the extent question, antecedent resolution of controls Uniroyal’s liability here. the terms question That whether limitation, presented part of the as remedy expressed and as express confusing, misleading are so warranty, deceptive, inadequate purchasers so as to an communication to constitute concerning meaning

The remedy property courts which have found limitations on strongly damage unconscionable been influenced to be have purchasers the fact misled or deceived or that were Reid, 250 explicit. warranties were not Ford Motor Co. v. See 176, 184, (limitations Ark. (Sup.Ct.1971) W.2d 465 S. 85 such); McCarty v. E. clearly are exclusive must to be stated Inc., J. 28 347 at 262 supra, Md.App. Korvette at A.2d (express negatived); Inc. v. warranty cannot later be Jutta’s Co., (damages at supra, N.J.Super. Fireco 307 Equipment invalid). clause In these obscure and concealed and therefore was found to be obscure in remedy cases the limitation clause meaning, surprise, provision suggest- an unfair in a concealed ing buyer receiving that the a benefit in the form of a was guarantee. McCarty court in fact admonished the manu- facturer, not want to be liable stating appellees that “if the do consequential damages, they expressly should not warrant 433—434, [against Md.App. the tire at 347 A.2d blowouts].” Indeed, Supreme specifically at 262. the Arkansas in Reid Court Company repair stated that the Ford Motor intended the “[i]f exclusive, contends, to be as it now it should have stated express language.” intention in 250 Ark. at 465 S.W. 2d Similarly, Appellate at 85. in Jutta’s Division found the limitation unconscionable because of the manner in which it N.J.Super. was buried in the contract. at 307. See guaran- totality, Taken its an examination of the seriously lacking tee in this it case leads to the conclusionthat clarity. narrative already suggested As from the earlier 326-328, warranty, discussion of the ante at the booklet presents Throughout linguistic owner with maze. relating quality, document there is an admixture of terms and exclu- capacity, performance, together and with disclaimers coverage, upon sions of as well as limitations and restrictions repeated and fulsome remedies. There are refer- ences to “guarantee,” seemingly relating quality the term sudden, performance isolated use of the followed the rather “promise,” limiting term entire contractual un- purportedly the dertaking given purchas- to a replacement. to tire What is thus straight-forward defining er is not a on simple and document quality the one hand that which constitutes an affirmation of or and, other, performance on the which flows from a mélange presented breach thereof. Rather what is is a of variant, provisions. overlapping, misleading, contradictory and Uniroyal guarantee The fundamental arises deficiency affirmative, from the to enforce it not as an albeit attempt limited, promise but as a of tire warranty performance of rather price subject refund to certain condi- purchase or meaning promise primary tions. If that is the of the undertak- 334 visually presented been should have

ing, obligation then that given to the term frequency and prominence with the same invited or not have been should “guarantee.” purchaser The per- obtaining was that he induced to believe limited, prom- of a instead formance, circumscribed however price purchase or the replaced would be ise that either tires v. E. J. McCarty circumstances. Cf. refunded under certain A.2d at 262 Korvette, Md.App. at 347 supra, warranty into cannot convert (damages limitation clause Co., Equipment supra, Jutta's Inc. v. Fireco replace); clause is obscure and (damages at 307 limitation N.J.Super. unconscionable); Murray, “Unconscionabil- is thus concealed and (unfair (1969) Unconscionability,” 31 U.Pitt.L.Rev. ity: unconscionability); Spanogle, “Analyz- surprise is an element of Problems,” 117 U.Pa.L.Rev. ing Unconscionability unconscionability). (1969) (concealment trickery suggest and effectively limitations contending that these exclusions or In liability, warranty its and its resultant scope restrict Co., Eastman Kodak heavily upon relies Herbstman v. his purchase price wanted the supra. plaintiff There the held that malfunctioning camera refunded. Court warranty— was limited to that stated in the plaintiff’s remedy interpreting 68 N.J. at 12. In repair of the camera. manufacturer did warranty, the Court held that the Herbstman defects. the camera to be free of mechanical not warrant “Rather, such defects language contemplated used so, and, repair them.” Ibid. might occur if Kodak would Herbstman, however, distinguishable. Unlike the case, quality per- this which intermixes affirmations of relief, upon scope with disclaimers of and limitations formance undertaking purport in Herbstman did not to constitute repair. There were no simple promise other than a anything guar- misleading deceptive presentation; elements in the explicit expression antee limitation was clear and isolated. dealing with emphasized

It is to be that we are here words in a contract document that is exclusion or limitation contained

335 cooperative draftsman- product negotiation not the of mutual with a consumer article ship. purchaser mass-produced of a booklet, case, no in this has form or as standard prepared are bargain over its terms. Warranties opportunity to automatically with and distributed unilaterally by company Motors, Henningsen v. Bloomfield product on a mass basis. place ordinarily consumer must supra, 32 N.J. at 390. The good faith of the upon the fairness and considerable reliance recognized been It has therefore manufacturer and its dealers. necessarily reposes in a seller a consumer reliance which engenders a corresponding responsibility on the seller. See id. product, upon true where the failure especially at 399. This is personal injury or use, a serious risk of presents even in normal id. at 400. damage. See property long dealing public with the has of fair principle

This Romain, See, g., Kugler v. 58 areas. e. recognized been other 522, which are not made clear (1971) (terms of sale N.J. inexperienced con to uneducated and mass-marketing sellers Cos., Ins. enforceable); v. Continental are not Gerhardt sumers 291, policies in insurance (1966) (exclusionary clauses 48 N.J. and clear are not to be conspicuous plain nor which are neither Co., effect); Metropolitan Life Ins. N.J. Allen v. given knowledge good relies on (1965) (insured justifiably 305-306 Owen, (note supra, 50 N.J. at 116 insurer); cf. Unico v. faith of may standardized contract knowledge who has of seller’s holder holder of consumer’s note because not be holder-in-due-course practices are sub faith). Where trade good note without took or warranties regulation, advertisements ject governmental im conspicuously communicate prominently which do not understand readily in clear and exclusions or limitations portant improper or invalid regarded as language generally able are average consumer. they serve to mislead or confuse since (7 FTC, See, v. 379 F.2d g., Montgomery e. Ward & Co. guar when guarantees 1967) (advertising of unconditional Cir. Double advertising); deceptive limitations was antees contained (10 Lubricants, FTC, 270-271 Cir. 360 F.2d Eagle Inc. v. side instead of on 1965) (can ingredients printed on label with oil 336 misleading conspicuous enough is still and to inform

face not oil); public reprocessed that is from used General Motors oil 33, FTC, (2 1940), 312 Corp. v. 114 F.2d 36 Cir. cert. den. U.S. 682, 550, (GMAC (1941) plan” L.Ed. “6% 61 S.Ct. 85 1120 could charged annual public believing mislead into that interest was though reading otherwise). percent six even careful indicated 178, 188, Magazine, 333 68 Cf. Donaldson v. Read S.Ct. U.S. 591, 597, (“Advertisements (1947) as a whole L.Ed. every may completely although separate be misleading sentence literally may things be ly true. This because are considered said, omitted should be or because advertisements are that composed printed way mislead.”) in such a as to purposefully relevant case. foregoing principles

These are to this Uni of royal’s attempted limitation of its for breach its express warranty prominently, conspicuously, was not and clear ly coupled descrip set That failure with dominant forth. being a Uniroyal’s undertaking guarantee dealing tions of as performance purchas with the of the tires would lead a capacity er that ordinary understanding expect to believe and simply warranty quality was an affirmation of rather than a promise replace. Uniroyal’s that limitation of follows purchase either tire or a refund of the price can no given be effect. reasons, judgment Appellate

For these Division reversing remanding the matter for a new trial is modified and such new affirmed and trial shall undertaken accord- ance with opinion. this

PASHMAN, J., concurring. fully Uniroyal’s “guarantee”

I agree majority with constitutes not a express warranty merely an replacement. Ante at 327. agree I also that the limitation of remedies in the The ma- contained unenforceable. jority perceives confusing “so deceptive, the disclaimer to be misleading inadequate to constitute an communication to as concerning meaning purchasers warran- [full] ty.” Ante at I agree characterization, 332. While with this I refusing write to premise elaborate a second enforcement. maze,” artfully placed “linguistic The manufacturer within a has ante at provision that defeats a consumer’s reasonable expectations. only surprise This involves not to the consumer 330-331; see ante at cf. N.J.S.A. clarity, because of a lack of N.J.S.A. 12A:2-316(2), (3)(a); 12A:1-201(10), but the same “un- 12A:2-302, N.J. Comment surprise,” fair sup- ported this Court’s decision in Uniroyal, Collins v. 64 N.J. N.J.Super. (1974), aff’g (App.Div. 1973). 126 401 warranty’s The limitation only is not unenforceable because of the manner in drafted, which it was it is unenforceable because of its content. Thus, I would follow the approach taken both the trial court Appellate and the Division and hold the disclaimer unconsciona- ble as a matter of law. plaintiff is clear that recovery would able to seek for the

property damage alleged here in the absence of the limitation imposed by Uniroyal. Jersey’s New Uniform Commercial Code provides damages given the usual buyer measure of a for of warranty recovery consequential breach includes for dam- N.J.S.A. ages. 12A:2-714(3). damages injuries These cover property proximately resulting any from breach of N.J.S.A. 12A:2-715(2)(b). agreement may recovery A sales limit for consequential damages “unless the limitation or is exclusion 12A:2-719(3). N.J.S.A. unconscionable.” “Limitations of conse- quential damages injury person to the in the case of consum- prima facie unconscionable but limitation of goods er Id. Because this case where the loss is commercial is not.” only property damage, plaintiff involves does not have the benefit of this presumption unconscionability. of The limitation analysis here must therefore be assessed a under traditional unconscionability. See N.J.S.A. 12A:2-302. question unconscionability

The is one of law the court. 12A:2-302(1). statute, however, N.J.S.A. provide does not unconscionability. following definition of The comments N.J.S.A. 12A:2-302 offer only general the most sense of di- rection. They broadly governing principle describe the as “one * * surprise oppression and unfair prevention

of the 12A:2-302, 1. N.J. Comment Case law on subject lacking in universal- similarly guidance, but greater affords area, leading in this In one of the cases ly accepted standard. “[ujnconscionability has Wright observed that Judge Skelly J. meaningful to include an absence recognized been generally together with contract parties of the part choice on the of one party.” the other unreasonably favorable to are terms which Co., F.2d Walker-Thomas Furniture Williams v. Dobbs, Johnson, v. 50 N.J. (D.C. Cir. Ellsworth Inc. 1965). See Romain, Kugler v. (1967). recently, More this Court amorphous as “an (1971), unconscionability 58 N.J. 522 described business ethic” designed to establish a broad concept obviously is “to make realistic the intent of the doctrine and noted has resulted from agreement of the law that the assumption of choice and who had freedom bargaining parties real between meaningful negotiate in a fashion.” understanding ability Id. at 543-544. unconscionability avoiding any precise

By definition naturally expected the concept, of the Code framers “[t]he public so as to effectuate the interpret liberally courts to it case-by-case into it on a basis.” purpose, pour and to content Thus, applying general these notions Kugler, 58 N.J. at 543. factors, contract, variety assess a of particular to a a court must vary which will from case to significance the relevance and of setting, any “course of They include the commercial case. trade,” 12A:1-205(1), “usage of N.J.S.A. dealing,” N.J.S.A. contract, of the the relative 12A:1-205(2), purpose and effect presence print, of fine bargaining strengths parties, surprise in unfair question, of the clause conspicuousness oppressive manifestly unreasonable presence and the of v. 12A:2-302(2); Williams Walker-Thomas terms. See N.J.S.A. Motors, 449; Co., Fageol v. 86

Furniture 350 F.2d at Schroeder 256, 20, P.2d Wash.2d 544 23 (Sup.Ct.1975) (en banc); see Code, Summers, 4-1 Uniform Commercial generally § White & 112-130, (1972); Spanogle, “Ana- to 4-7 at 12-11 at 383-392 § Problems,” (1969). 117 U.Pa.L.Rev. 931 lyzing Unconscionability

339 compels present in the case application principles An of these limitation is unconscionable. the conclusion that in this case evidences a severe imbalance setting The commercial by the meaningful and a lack of choice bargaining power is Although party’s superior bargaining power one consumer. finding unconscionability, for a not itself a sufficient basis 12A:2-302, clearly impor- see it is an N.J. Comment contrast, to relieve By tant consideration. courts are hesitant bargain strong, knowledgeable experienced parties from a they actively negotiated prove when later events advantageous bargain party prefer. to be less than one would Int’l, Inc., See, g., e. M. Wilson & Co. v. Smith 587 F.2d 1363 S. (9th 1978); Westinghouse v. Elec. Royal Indemnity Cir. Co. (S.D.N.Y.1974) (applying Jersey New Corp., F.Supp. 385 520 law); Co., 219 Kan. 549 P.2d Wille v. Southwestern Bell Tel. Co., Holding Inc. v. American Dist. Tel. (Sup.Ct.1976); 903 Abel Div.1975), aff’d, Co., (Law N.J.Super. N.J.Super. (App.Div.1977). contracts with

When individual consumers enter into sales concerns, “bargain” hardly appro- large commercial the word negotiated; priate. agreement rarely The terms of the are The con- stronger party simply more often the dictates them. is in a “take-it-or-leave-it” situation. He is able to seek sumer any matters as to which only regarding more favorable terms he is left without competitors permit deviation. Often Dobbs, Inc., 50 N.J. at 554- meaningful choice. See Ellsworth 555; Motors, Inc., Henningsen cf. v. Bloomfield 32 N.J. law). out (1960) (applying pre-Code 403-404 This is borne bargain over the parties the facts of this case. The did not extent Uniroyal’s guarantee. Uniroyal determined the terms unilaterally. of its liabilities bargaining

The result clause plaintiff’s power lack of excluding any consequential the manufacturer’s express warranty. for breach of its The unconsciona- considera- bility apparent proper of this limitation becomes once given type product tion is to the involved—an automobile an item carries a performance tire. A failure of such damage personal injury, property that or significant probability consequences the highly result. foreseeable that both will It is than malfunctioning will be much more severe the the tire’s of Thus, major a concern is consumer’s loss of the tire itself. mere a This fact is availability replacement. not of safety, with the owner testimony in this the of the car’s case evidenced steel belted radial tires because he specifically requested he “better” tires. wanted view, impor- recognized the my correctly

In both courts below assessing when goods tance of the involved this case consumer also ante at 335. unconscionability. excising In the See trial, Judge Shelton limitation clause from consideration at following comparison: made the something out and of water carafe water [I]f [a] dripped spoiled piece unconscionable to then it seems me that it would not be limit to other, probably water of the of the of the the the carafe, replacement manufacturer liability [to] damage resulting from the water because the to carafe, consequential property * * * leaking water be foreseen one which would of could not as ordinarily damage. is in manufacture constitute substantial I think that contrast to the of a tire. keeping the of a motor the The tire is essential element vehicle motor things in contact other to a vehicle with the road. can motor Many happen long steering, can but so and tires and most be as it has brakes vehicle, problems go. electrical of. not able to system taken care It may may stop. when a tire it can off the side of the road. But fails be driven fails, probably * * * damage resulting. I is a think, there is the of common That, likelihood fact. regardless the it seems to me that of On question unconscionability, damage damage resulting whether the from the failure a tire was property injury, to it unconscionable to the manufacturer limit would be permit personal of a tire to tire. of the the replacement Obviously, replacement liability something than market of substantial less and the today’s possibility $100 something damage matter of common fact from the failure of the tire is that is a * * * case in Division as the Collins the indicated. Appellate same to me that of a tire the In the it seems way, reliability flow from the of a tire are such that it that can failure consequential to tire. would be unconscionable to limit replacement [Emphasis added] affirming, Division Appellate In noted of the of the tire is the same the natural and reasonable purchaser expectation resulting injuries as in the case of from a breach warranty— personal for the of the tire to the extent of its concern feature potential safety damage. as well as It was reasonable entirely property, personal, damage larger loss, of this tire to have recover here expected purchaser tire. and not [Emphasis added] the car, simply

341 I agree principled with the courts below that there is no distinction between the limitations in this case and those Despite type damages, the difference in the Collins. supported finding basic considerations which of unconsciona- The commercial bility apply equal Collins with force here. setting type product and are the same. The “natural re- expectation purchaser flowing liance” and of the “reasonable Collins, 263, warranty,” present from the 64 N.J. at are in both expectations “patently cases. These render unconscionable” the manufacturer’s attempt to limit its for breach warranty replacement. to a refund or Id. Korvette, McCarty

This same result was reached in v. E. J. 421, Md.App. (Ct.Spec.App.1975). 28 347 A.2d 253 In that plaintiffs case were involved an automobile accident as a alleged right of an of the rear tire. The blowout blowout result personal injuries plaintiffs property caused to the well as as damage Finding to their car. the road hazard tire to blowouts, express warranty against constitute an the court following language: turned to the effect of the Neither the manufacturer nor Korvette Tire shall be liable for Centers damage and is limited our consequential liability solely at 347 A.2d at 423, product. [28 Md.App. 256] The court clause to exclude liabili- “purports concluded that the ty personal injury property damage.” Md.App. for both at attempted 347 A.2d at 261. It went on to find the consequential damages personal injury exclusion of uncon- scionable as a matter of law under Md.Comm.Law Code Ann. 12A:2-719(3)). 2-719(3) (identical As to the exclu- § statutory the court noted that no property damages, sion of presumption respect goods. with to sales of consumer existed persuades nevertheless that “the rationale in concluded Collins here, attempts that the to exclude us clause personal injury property damage both is so tainted entirety.” unconscionability as to warrant deletion in its v. Bartell Md.App. at 347 A.2d at 262. See also Mieske Co., (en banc) Drug (Sup.Ct.1979) 92 Wash.2d 593 P.2d 1308 film, clause (company exposed lost 32 rolls of individual’s movie unconscionable). film limiting damages to retail cost of limit the argues it is not unconscionable to Defendant purchaser for breach of remedies available to a tire Uniroyal could requires. law goes beyond what the Since protection,” argued, it is giving refrained from this “added have the failure of its permitted to limit the remedies for it should product up higher to live to this standard. See N.J.S.A. 12A:2- 3; Collins, 263-264, 316, 2-719, 64 N.J. at N.J. Comment correctly (Clifford, J., dissenting). argument same was This with the in as “not consonant rejected by the Court Collins Express 64 N.J. at 262. commercial and human realities.” attractive- manufacturers to increase the by warranties are used The inclusion of warranties products ness of their to consumers. purchasers corporate Conversely, benevolence. is not a result of warranties; to have mean- rely they reasonably expect on them compared When ing replacement. a mere of beyond presents clear disclaimer clause expectations, with those even a Collins, surprise an unfair to the consumer. 64 N.J. at 263. when, here, of the items particularly This is true as malfunction person proper- significant potential damage carries a for to and ty- reasons, opinion of the foregoing

For the I concur Court.

CLIFFORD, J., dissenting. it for a manufactur- This case asks whether is unconscionable replacement and to exclude liability product er to limit to liability damage in the event of failure of a property Appellate the trial court and the product. non-defective Both However, goes the Court Division answered in the affirmative. issue, this, addressing out of its to avoid the salient choos- way supposed of a ing instead to the case on the basis decide decep- question: whether the limitation is so antecedent tive, Id. confusing misleading as to be unconscionable. represents cogent concept discourse given

The answer on interesting law. However that unconscionability of contracts academic, be, entirely it for the issue addressed may discussion alleged deceptive pall question is not before us now. The of the the courts in either of was not raised remedy limitation contained It was not parties. It was not briefed below. the limited extent us. To papers before in the certification parties for both argument, counsel adverted to at oral it was questions the Court. issue was before that such an denied sound, however, daresay I basic are-squarely posed, answer, to are dispose us jurisprudence should principles these: promising in the product

1. Does a provision an failure constitute express warranty? event of product to limit replace- a manufacturer liability product 2. Is it unconscionable for damage event of failure of a in the and exclude ment property non-defective product? I radial its steel belted purchasers to the Uniroyal distributed red, white booklet entitled black and page tires a thirteen Among things described Guide and Guarantee.” “Owner’s rotate, align replace and when to the booklet are how inspection service and tires, guarantee, tire the terms of the booklet deal with page the thirteen Only pages two routines. sub- into six pages These are divided guarantee. Uniroyal’s type: in bold-face red and set off headings printed 1. ELIGIBILITY. GUARANTEE AND FOR HOW LONG. 2. WHAT IS GUARANTEED ARE CALCULATED. 3. HOW PRO RATA CHARGES BY THE GUARANTEE. 4. WHAT COVERED IS NOT 5. UNIROYAL’S OBLIGATIONS. 6. OBLIGATIONS. OWNER’S language explained then are guarantee The terms of the clarity and more as a model I confess strikes me “melange of or the “linguistic maze” than as the precision provisions” contradictory variant, misleading and overlapping, pertinent are the majority, ante at 333. Here perceived by guarantee terms: ELIGIBILITY

1. GUARANTEE (a) guarantee General To All Owners Of: Applies * Passenger Cars * Light Trucks

* Recreational Vehicles * Rental and Lease Vehicles

(b) Road Hazards To All Owners Of: Applies * Passenger Including Passenger Cars Rental and Lease Vehicles Car Service (c) Mileage Original To the Owner Of Applies * Passenger Including Passenger Cars Rental and Lease Vehicles in Car Service 2. WHAT IS GUARANTEED AND FOR HOW LONG guaranteed Your set of Steel Belted Radial Tires is vehicle 40,000 odometer miles as follows: (a) General Guarantee—If a tire becomes reason unserviceable, other any during than wearout or the road hazards covered below the first specific 8,000 charge. adjustments miles of it bewill at no operation, replaced Thereafter, charge will be made on a rata basis to 40,000 vehicle odometer pro up miles. (b) Road Hazard Protection—If within vehicle 40,000 odometer miles the tire snags, becomes due to or breaks, cuts it will unrepairable impact punctures, charge on a rata basis. replaced pro (c) Mileage—If the tread on tire wears down to the tread wear indicators any (as page 1) defined on section 40,000 before vehicle odometer miles, the tire charge will be with a new tire on a rata basis. replaced pro 3. HOW PRO RATA ARE CHARGES CALCULATED ^[********]

4. WHAT IS NOT COVERED BY THE GUARANTEE (a) guarantee. General Exclusions to all applicable parts * or or failure or loss due to Unserviceability unrepairability accident, fire, damage, racing, chain run theft, flat or abuse. willful * registered Tires on car outside the normally operated United States or Canada. * guarantee This is a under the conditions promise specified. It is not a tires will not fail. your * given This in lieu of all other or warranties, implied including but not limited to warranties of any implied merchantability fitness for a It does not cover particular purpose. consequential repairing replacing UNIROYAL’s is limited to the tire in accord- guarantee. ance with the contained in this stipulations * originally Tires transferred from the vehicle on which were installed. they (b) Road Hazard Exclusions * Tires used on passenger recreational trucks, trailers and vehicles, campers, ears in such as and taxi service. special applications police * Mileage guarantee voided if booklet is lost or rota- mandatory inspections, alignment adjustment, tions and wheel and balance checks and if are required, not made, or if tires are at inflation. operated improper

[********]

345 as a while labeled provisions, that these The Court holds warranty. express effect of an have the force “guarantee,” in accord conclusion, agree, I with which This Ante at 326. See, Inc. v. Fireco g., e. Jutta’s of law. principles with settled v. Adams Co., N.J.Super. (App.Div.1977); 301 150 Equipment Sales, Inc., (App.Div. N.J.Super. 42 313 Tramontin Motor Peter 1956); 12A:2-313. my with part company I

However, point that it is at this the tire significant not whether colleagues. It is term has or a Neither guarantee policy is called a tires, portending immortality significance talismanic from traffic perpetual immunity motoring, or palladium of made affirmative statements Once the summonses. warranties, step is to deter- the next to be are deemed scope. mine their recognized, judicially knowledge, matter of common

It is a of reasons myriad for a will blow out tires can and that conditions, maintenance, road defect, of tire lack including v. Uni damaging objects. Collins striking happenstance see (1974) (dissenting opinion); 64 N.J. royal, 72, 216 N.E.2d Ill.App.2d Corp., Motors v. General Shramek Tires, 101 Royal So.2d v. U. S. (App.Ct.1966); Williams sought this and Uniroyal recognized (La.Ct.App.1958). accordingly. guarantees affirmative circumscribe its Collins, supra, Uni- warranty in provisions Unlike caus- against specific guarantee here made no affirmative royal Rather, it made tires. es for failure of the Uniroyal fur- specified conditions. certain replacement under making a terms, it was not stated, in unmistakable ther not fail. tires would promise that the v. Eastman in Herbstman a similar analyzed We wanted plaintiff Herbstman the Co., (1975). In 68 N.J. 1 Kodak This refunded. malfunctioning camera of his price purchase to that stated remedy was limited plaintiff’s Court held that Herbstman interpreting In namely, repair. guarantee, warrant did not the manufacturer guarantee we decided “Rather, camera to be free of mechanical defects. language used contemplated might occur, and, that such defects so, if repair Kodak would them.” Id. at 12. guarantee Herbstman,

Like the scope of guarantee here is clear. specifically stated: guarantee promise specified. This is a of under the conditions It is your not a tires will not fail. meaning The significance and guarantee of this is manifest. scarcely However, could be made plain. more attempt in its distinguish Herbstman and render the Uniroyal guarantee un- conscionable, 334-335, ante at the majority subjects language before us to a myopic scrutiny, dilating the words until they are devoid of any definition. Having ravaged guarantee, analysis Court ends its short reaching the real issue in the case.

II provisions Uniroyal guarantee in the constitute a limita tion remedy.1 12A:2-719(3) specifically provides that consequential damages may be limited or excluded unless such limitation or exclusion be unconscionable. The statute further states that it is “prima facie” unconscionable to limit consequential damages personal injuries in the case of con goods. sumer question Id. The squarely before the Court is whether such a presumption of unconscionability should be extended consequential damages for property damage. majority correctly distinguishes 1The warranty between disclaimers of remedy. Ante at 330-331. The limitations exclusion or modification of warranties is covered under N.J.S.A. 12A:2-316. The limitation or modifica tion strong of remedies is found in N.J.S.A. 12A:2-719. There are indications legislature, following that the the lead of the drafters of the Uniform Commer Code, operate independently cial intended N.J.S.A. 12A:2-316 to of N.J.S.A. Summers, (1972) 12A:2-719. J. White & R. Uniform Commercial Code Leff, “Unconscionability § 12-12 Emper- at 395. See also and the Code—The Clause,” (1967). implication or’s New 115 U.Pa.L.Rev. This buttressed N.J.S.A. 12A:2-316 UCC Comment which states: * ** * consequential This Article treats the limitation or avoidance of limiting breach, separate as a matter of remedies for from the exists, warranty. matter of creation of under a If no problem limiting there is of course no remedies for breach of no. The statute distin clearly question The answer to this injuries from personal guishes remedy limitations 12A:2-719(3). The damage. N.J.S.A. property limitations for of contractual legitimate exercises acceptable latter are Co., 125 v. J. I. Case Adams by manufacturers. See freedom Rogers Lankford v. (App.Ct.1970); 261 N.E.2d 1 Ill.App.2d Murray v. Sales, (Ct.Civ.App.Tex.1972); 248 Ford 478 S.W.2d (1978); 406, 513 cf. Rambler, Inc., 265 N.W.2A 83 Wis.2d Holiday 80, (1971) Reid, 176, 85 Ark. 465 S.W.2d v. 250 Ford Motor Co. remedy to be repair (“If Company the Ford Motor intended the contends, that inten have stated exclusive, now it should as it Supreme Court As the Oklahoma express language”). tion 1116, Co., 585 P.2d Tire Kelley-Springfield in Tuttle v. noted escape able to should be “[CJertainly a seller (Okl.Sup.1978), manner in some But this must be achieved liability. no-fault might provide example a seller of the code. not violative .For out, if it not blow but the tire will that he does not The Tuttle court 1120. replace it.” Id. at promises does he to per se uncon are not limitations on remedies also noted that lan in the which have dabbled Id. Those courts scionable. prop examining limitations when unconscionability guage of “not uncon remedy to be limited damage have found the erty applied. Ford as but unconscionable on its face” scionable (incura 480, (Ky.App.1978) 485 Mayes, v. 575 S. W.2d Motor Co. v. Cum frame); Eckstein from truck and vibration ble noise rev’d (Ct.App.1974), mins, N.E.2d 904 App.2d 41 321 Ohio (Ct.App. N.E.2d 549 App.2d 46 Ohio grounds, on other incapable in automobile 1975) (constant vibration and hum part). inability to isolate defective repair due to prima facie limitations to find judicial The refusal supported by a damage is property case of unconscionable in the Code, in this embodied reading of the Uniform Commercial close under 12A:2-719(3), the section state in Title 12A. N.J.S.A. damages. N.J. consequential with scrutiny, exclusively deals damages as follows: consequential 12A:2-715(2) defines S.A. resulting (2) breach include from the seller’s Consequential and needs of (a) resulting general from requirements loss particular any contracting and which reason to know had which the seller at the time of otherwise; cover or not could reasonably prevented by (b) injury person property proximately resulting to from breach of [L.1961, 120, (emphasis added).] c. 2-715 § Injuries person property and to distinguished are here. It is then, apparent, that the drafters did not intend terms to be sections, synonymous g., 12A:2-719(3). later e. N.J.S.A. emphasized This distinction was in passing this Court in Uniroyal, Inc., Heavner, Heavner N.J. (1973). v. In dealing limitation, law with conflicts of ease statutes 12A:2-719(3), Court quoted adding parenthetical “not to property” phrase “damages after the for injury to the person.” Id. at 154. Appellate presumption Division would extend the

unconscionability in Uniroyal, Inc., Collins v. where limitations personal on remedy injuries involved, are to situations such as the involving only one before us damage. property But that applied extension as to a product’s damage non-defective property plain conflicts with meaning statute. further precludes limiting manufacturer from its any way and has the of making effect the manufacturer an public. insurer of the Collins See v. Uniroyal, supra, 64 N.J. at opinion); Note, (dissenting “Presumptions of Unconscionability and Nondefective under Products the Uni- Code,” form (1975). Commercial 50 N.Y.U.L.Rev. 148 purpose of remedy limitation here was to enable the manufacturer to make a for goods non-defective beyond imposed by “opening law without wide the flood gate Uniroyal, Inc., of claims.” Collins supra, v. 64 N.J. at 271 (dissenting opinion). Collins, As noted in the in dissent the effect of a such clause is in laudable its of this allowance extra degree guarantee. of Id. at 272. The of ignoring effect the limitation of here necessarily discourage will tobe the making promises replacement.2 of such of resulting 2If sellers find that the increase in because of such a sales guarantee generates greater against net revenue than is to insure needed the personal liability, they may repair concomitant then to offer continue to replace Note, products. supra, nondefective See 50 N.Y.U.L.Rev. at 176. The the in Uniroyal’s replace product here to accordance specified goes beyond with the the minimum warran- conditions suggest part This not to altruism on the ty required by law. is it is at least point the manufacturer but rather to out that act liability unfair on an probably predicate ironic and to by to been noted beneficial the consumer. As has inherently commentator, holding “places sellers one the Court’s Cbllins something extra strange They give a cannot consumers bind. liability assuming way the of remedies without total products. by failure of non-defective personal injuries caused making hand, they can refrain from On other anything prod- but defective liability warranties and avoid Note, at 175-76. supra, ucts.” N.Y.U.L.Rev.

Ill judgment of I would reverse the foregoing For reasons remanded the cause for determi- Appellate Division which On the express warranty was breached. nation whether record, that assumption, in the nowhere contradicted plaintiff to discharge its discharged willing has or is tire, trial I remand replacing the non-defective would appellant. judgment in favor entry court for the there of WILENTZ Justice For modification affirmance—Chief PASHMAN, SCHREIBER, SULLIVAN, HAN- and Justices DLER and POLLOCK—6.

For CLIFFORD—1. reversal and remandment—Justice however, likely outcome, price product to the consum- that the more compensate against cost of must be raised to for the insurance er Collins- type liability. pay protection Thus the will have to extra for consumer product against is desirable or not. whether he feels this failure nondefective protect is able to where the consumer It should be that this an area noted insurance, making by purchasing as to his own choice his interest thus consequences product against protection of nondefective whether added to him. failures desirable

Case Details

Case Name: Gladden v. Cadillac Motor Car Division

Court Name: Supreme Court of New Jersey

Date Published: Jun 30, 1980

Citation: 416 A.2d 394

Court Abbreviation: N.J.