(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 14, 1994 -- Decided July 20, 1994
O'HERN, J., writing for a majority of the Court.
Althea Contey was driving on an unfamiliar street in the Borough of Franklin Lakes in the early
morning hours. She missed an unmarked turn in the road and struck a utility pole. The utility pole
stands about ten inches from the curb line at the beginning of an S-curve in the road. To drivers
travelling on the road, the position of the pole appeared to be in the middle of the roadway. Injured in
the accident, Contey sued the New Jersey Bell Telephone Company, the Rockland Electric Company,
the Borough of Franklin Lakes, the County of Bergen, the State of New Jersey.
Contey settled or voluntarily dismissed her claims against the public entities. However, she
pursued her claims against the telephone company and the electric company. The trial court granted
summary judgment in favor of the utility companies. On appeal, in an unreported opinion, the Appellate
Division affirmed on the basis of its earlier holding in Oram v. New Jersey Bell Telephone Co., that a
utility company assumes no liability for the placement of its pole adjacent to the roadway when a
collision occurs because a vehicle leaves the travelled section of the roadway. One judge dissented,
reasoning that Contey had presented an ordinary negligence case and that the majority allowed
unwarranted immunity to the utility companies.
Contey appeals to the Supreme Court as of right based on the dissent below.
HELD: The primary responsibility for the safety of the motoring public rests with the highway
planners and engineers and the public bodies by whom they are employed at the State,
county and local level.
1. In this case, whether a duty exists is a question of fairness. The inquiry involves a weighing
of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.
(pp. 3-7)
2. Under New Jersey law, utility companies do not have the unilateral right to determine the
location of poles or facilities along the roadway. The responsibility for the safety of motorists should rest
with those who own, control and maintain the road. Although utility companies have a duty to foresee
that motorists will leave the travelled portion of the highway, the governmental bodies and highway
planners are best suited to determine how the utility should fulfill that duty; the public entities are in the
best position to provide and to enforce standards and regulations governing utilities. (pp. 7-12)
3. Highway planners, and not utility managers, are best equipped to determine the location and
design of fixtures in or near a right-of-way. A uniform standard of care imposing responsibility for
highway safety on the public bodies is appropriate. When a public utility has located its pole and
structures within the public right-of-way in accordance with the location and design authorized by the
public body, the utility, in the absence of countermanding directions from the public body, should have
no further duty to protect motorists. Public bodies will want to ensure that the location and design of
such fixtures are approved features of the highway design in order to come under the protection of the
Tort Claims Act. (pp. 12-13)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE HANDLER, dissenting, in which JUSTICE STEIN joins, is of the view that the
majority incorrectly exonerates utilities from any responsibility for the placement of telephone poles and,
in effect, accords them unwarranted immunity. Nothing suggests that the Legislature intended the
relevant statutory scheme to exonerate utility companies of their duty to exercise reasonable care in the
placement of utility poles.
JUSTICES CLIFFORD and POLLOCK join in JUSTICE O'HERN's opinion. JUSTICE
HANDLER filed a separate dissenting opinion in which JUSTICE STEIN joins. CHIEF JUSTICE
WILENTZ and JUSTICE GARIBALDI did not participate.
SUPREME COURT OF NEW JERSEY
A-
132 September Term 1993
ALTHEA CONTEY,
Plaintiff-Appellant,
v.
NEW JERSEY BELL TELEPHONE
COMPANY and ROCKLAND
ELECTRIC COMPANY,
Defendants-Respondents,
and
JOHN DOE (owner of utility
pole and surrounding
property); BOROUGH OF FRANKLIN
LAKES, COUNTY OF BERGEN; and
STATE OF NEW JERSEY,
Defendants.
Argued March 14, 1994 -- Decided July 20, 1994
On appeal from the Superior Court, Appellate
Division.
Anthony C. DiLella argued the cause for
appellant.
Leonard P. Rosa argued the cause for
respondent New Jersey Bell Telephone Company
(Harwood Lloyd, attorneys).
C. Douglas Reina argued the cause for
respondent Rockland Electric Company (Abrams,
Blatz, Gran, Hendricks & Reina, attorneys;
Barry E. Rosenberg, on the brief).
The opinion of the Court was delivered by
O'HERN, J.
This case requires us to consider again the limits of
proximate cause and the limits of legal duty as defined by the
foreseeability of harm to others. The case arises from an
automobile accident in the Borough of Franklin Lakes. Plaintiff,
Althea Contey, while driving on an unfamiliar street in the early
morning hours, missed an unmarked turn in the road and struck a
utility pole. The pole stands approximately ten inches from the
curb line at the beginning of an S-curve in the road. To drivers
traveling on the roadway, the position of the pole appeared to be
in the middle of the roadway. Injured in the accident, Ms.
Contey sued the New Jersey Bell Telephone Company, the Rockland
Electric Company, the Borough of Franklin Lakes, the County of
Bergen, and the State of New Jersey. (The telephone company
owned the pole, and the electric company had permission to locate
its wires on the pole.)
Ms. Contey settled or voluntarily dismissed her claims
against the public bodies. However, she pursued her claims
against the telephone company and the electric company. The
trial court granted summary judgment in favor of the utilities.
In an unreported opinion, the Appellate Division affirmed on the
basis of its earlier holding in Oram v. New Jersey Bell Telephone
Co.,
132 N.J. Super. 491 (1975), that a utility assumes no
liability for the placement of its pole adjacent to the roadway
when a collision occurs because a vehicle departs from the
traveled section of the road. One judge dissented, reasoning
that plaintiff had presented an ordinary negligence case and that
the majority allowed unwarranted immunity to the utility
companies. Plaintiff appealed as of right, R. 2:2-1(a)(2).
In essence the case at bar creates a classic case of intervening causation. "This presents the question whether the asserted negligence in the placement of the pole is to be considered as the proximate cause, or whether the operation or movement of the colliding vehicle may be said to be the real cause, the collision with the pole being merely incidental."
[Padgett v. West Fla. Elec. Coop., Inc.,
417 So.2d 764, 766 (Fla. Dist. Ct. App. 1982)
(quoting T.C. Williams, Annotation, Injury to
Traveler From Collision With Privately Owned
Pole Standing Within Boundaries of Highway,
3
A.L.R.2d 6, 56 (1949)).]
We can answer the question in either of two ways. Then-Judge Cardozo provided a familiar legal test in Stern v.
International Railway Co.,
115 N.E. 759, 761 (N.Y. 1917):
The poles, if placed and maintained with
due regard for the public safety, are not
unlawful obstructions. * * * [T]hey must be
so located as to avoid unreasonable and
unnecessary danger to travelers upon the
highway. * * *
The question is whether the place chosen
is so dangerous and the danger so needless
that the choice becomes unreasonable. If
danger in that degree is present, [the
company is] charged with liability.
Courts in Florida and Pennsylvania have held that utility companies may be liable to motorists who stray from the traveled
portion of a highway for harm caused by the negligent placement
and maintenance of utility poles. Padgett, supra,
417 So.2d 764; Nelson v. Duquesne Light Co.,
12 A.2d 299 (Pa. 1940); Scheel
v. Tremblay,
312 A.2d 45 (Pa. Super. Ct. 1973).
In a relatively recent case, McMillan v. Michigan State
Highway Commission,
393 N.W.2d 332 (1986), the Michigan Supreme
Court rejected the concept that a utility owes no duty to an
occupant of a vehicle leaving the traveled portion of the
highway. That concept rests on the premise that errant motorists
are not properly using the highway. Id. at 337. The Michigan
court reasoned that because drivers will foreseeably leave the
traveled portion of the highway, a poorly-placed utility pole
might pose an unreasonable danger to such a traveler. Id. at
338-39. The test that court adopted is whether reasonable minds
could differ about a utility's negligence in placement of the
pole, considering factors such as location of the pole, the
pole's proximity to the highway, the configuration of the
roadway, the notice to the utility company of previous accidents
at that location, and alternative, less-dangerous locations for
the pole. Id. at 340. If reasonable minds could so differ, the
issue of negligence is for the jury. Ibid.
Early common law recognized the foreseeability of a
vehicle veering from a paved way and colliding with a utility
pole. In Lambert v. Westchester Electric Railroad Co.,
83 N.E. 977 (N.Y. 1908), a firefighter aboard a moving fire wagon
sustained injuries when he hit a trolley pole on the edge of a
roadway. The court held that the trolley company should have
foreseen that a wagon might, when rapidly departing from a
firehouse, lose control and leave the paved surface of the
driveway when entering the street. Id. at 978. New Jersey law
had acknowledged the duty to foresee that vehicles may leave the
roadway and collide with an adjacent utility pole. See Hoyt v.
Public Service Electric & Gas Co.,
117 N.J.L. 106 (E. & A. 1936),
in which the improper fastening of a transformer to a utility
pole that leaned over the traveled portion of the roadway injured
a driver in a collision. The court held that a utility should
exercise "reasonably careful judgment" when designing and
maintaining poles because errant motor vehicles are likely to
strike them. Id. at 109.
However, in Oram, supra,
132 N.J. Super. 491, the
Appellate Division held that the placement of a pole could not
have proximately caused an injury when the car veered from the
traveled portion of the highway. "[The utility] need only
anticipate ordinary travel which `contemplates an automobile
being driven and kept on the roadway.'" Id. at 494 (quoting
Monaco v. Comfort Bus Line, Inc.,
134 N.J.L. 553, 557 (E. & A.
1946)). However, Oram's reliance on Monaco is inapposite because
Monaco dealt only with the municipalities' design of a bridge and
not a utility's placement of its pole near a roadway, and
therefore, its reasoning does not contemplate the duty of a third
party.
One difference between our earlier and later law may be
that over the years our governmental bodies have paved highways
and installed curbs. The public right-of-way is usually wider
than the paved or curbed portion of the road. Does that alter
the legal analysis? Cardozo's test had referred to "travelers
upon the highway." Stern, supra, 115 N.E. at 761. Is the
"highway" only the paved area or the area within the curbs? The
Appellate Division recently held that a public body had a duty to
maintain more than the traveled lanes of a roadway. In Furey v.
County of Ocean, ___ N.J. Super. ___ (1994), that court found
liability under the Tort Claims Act because
there was evidence that the roadway was not
safe for drivers in general because it did
not have an adequately maintained shoulder,
and because of the foreseeable necessity that
drivers might, while travelling, have to pull
over slightly onto the shoulder of such a
two-lane roadway for numerous reasons.
Thus, to say that the utility "need only anticipate
ordinary travel," Oram, supra, 132 N.J. Super. at 494, begs the
question. Whether stated in terms of proximate causation or the
existence of a duty, further analysis is warranted.
As the Michigan Supreme Court explained,
"It is quite possible to state every
question which arises in connection with
`proximate cause' in the form of a single
question: was the defendant under a duty to
protect the plaintiff against the event which
did in fact occur? Such a form of statement
does not, of course, provide any answer to
the question, or solve anything whatever; but
it may be helpful since `duty'--also a legal
conclusion--is perhaps less likely than
`proximate cause' to be interpreted as if it
were a policy-free factfinding. Thus, `duty'
may serve to direct attention to the policy
issues which determine the extent of the
original obligation and of its continuance,
rather than to the mechanical sequence of
events which goes to make up causation in
fact."
[McMillan, supra,
393 N.W 2d
at 334 (quoting W. Page Keeton
et al., Prosser and Keeton on
the Law of Torts § 42, at 274
(5th ed. 1984)).]
We have used the foregoing concepts in a wide variety of
contexts. In Kelly v. Gwinnell,
96 N.J. 538 (1984), the social
host argued that when an inebriated guest, driving home from a
party, accidently injures another, the guest's conduct, not the
conduct of the host who served the alcoholic beverages to the
guest, is the proximate cause of the injuries. We held, however,
that "`[w]hether a duty exists is ultimately a question of
fairness. The inquiry involves a weighing of the relationship of
the parties, the nature of the risk, and the public interest in
the proposed solution.'" Id. at 544 (quoting Goldberg v. Housing
Auth.,
38 N.J. 578, 583 (1962)). We have similarly defined the
limits of proximate cause as "`an instrument of fairness and
policy.'" Brown v. United States Stove Co.,
98 N.J. 155, 173
(1984) (quoting Caputzal v. Lindsay Co.,
48 N.J. 69, 77 (1966)).
Each year approximately 1500 persons die because of vehicles colliding with utility poles. Ronald D. Hughes, U.S. Dep't of Transp., Breakaway Timber Utility Pole Installations in Kentucky 2 (1991). In fixed-object collisions resulting in fatalities, the frequency with which vehicles hit utility poles is second only to the frequency with which they hit trees. Approximately 65,000 injuries occur annually because of vehicle-utility-pole accidents. Ibid.
The Federal Highway Administration (FHA) has considered countermeasures to reduce or mitigate collisions with utility poles. Utilities could place lines underground, thereby disposing of the need for poles; place poles further from the roadway; reduce pole density; or shield poles with guardrails. Ibid. For some years the FHA has been experimenting with a breakaway utility pole. That type of pole is comprised of three sections. A hinge connects the short upper section to the long middle section. On impact, the middle section breaks away from the base, leaving a short stump over which the vehicle can pass. The middle section swings upward out of the path of the vehicle because of the hinge. Cables connecting the upper section to the adjacent poles prevent the upper and middle sections from falling on the vehicle. Id. at 6. Kentucky and Massachusetts have
installed those poles in several locations. In Massachusetts,
breakaway poles have yielded minor or no injuries to vehicle
occupants in five instances. Richard P. Buser & Carol A. Buser,
U.S. Dep't of Transp., The Breakaway Timber Utility Pole: A
Survivable Alternative 41-43 (1993).
Thus, because the risk is great, the public interest in
the solution is very great. But after a "weighing of the
relationship of the parties," Goldberg, supra, 38 N.J. at 583, we
conclude that the structure of government suggests that the
primary responsibility for the safety of the motoring public
rests with our highway engineers and the public bodies by whom
they are employed at the State, county, or local level.
Under New Jersey law, utilities have no right unilaterally
to determine the location of poles or facilities along the
roadway. N.J.S.A. 48:17-8 grants permission to any utility
company "organized under the laws of this or any other State," to
"erect, construct and maintain" its poles "in, upon, along, over
or under any public street, road or highway," after obtaining the
property owner's permission. N.J.S.A. 48:17-11 states that the
utility must erect its poles in accordance with ordinances and
resolutions adopted by the local municipality or board of
freeholders that designate "the location, number and size of the
poles." (Emphasis added.) The statute further provides that
such poles shall be "so placed as not to interfere with the
safety or convenience of persons or vehicles traveling on any
such street, road or highway."
The Borough of Franklin Lakes has adopted an ordinance
regulating the location of poles. That ordinance states, in
relevant part:
SECTION 2. All poles or posts hereafter to
be erected, constructed, reconstructed,
maintained and operated shall be located and
placed back of and adjacent to the curb lines
where shown by official maps of this Borough
and within eighteen inches thereof, and at
the points or places now occupied by the
poles or posts of [New Jersey Bell Telephone]
Company, its successors and assigns, and at
other convenient points or places upon the
streets, roads, avenues and highways,
adjacent to such curb lines.
Before proceeding with the work of erecting
any poles under the permission and consent
herein contained, said Company shall file
with the Mayor and Council of this Borough a
map or plan showing the location and size of
any such proposed pole or poles, which map or
plan shall be first approved by said Mayor
and Council, or their authorized
representative, before any such work is begun
as aforesaid.
[Borough of Franklin Lakes, N.J.,
Ordinance 76 (Mar. 14, 1949).]
A potential shortcoming of that ordinance is that it does not sufficiently involve the borough in any necessary safety analysis. A possible consequence of a failure by a public body to consider the location of utility poles in highway design is that the public body may not thereafter enjoy the immunity that would ordinarily attend the plan and design of a public highway. N.J.S.A. 59:4-2. See Thompson v. Newark Hous. Auth., 108 N.J.
525 (1987) (holding that "plan or design" immunity exists only
for an "approved feature" of a public work).
In Ball v. New Jersey Bell Telephone Co.,
207 N.J. Super. 100 (App. Div.), certif. denied,
104 N.J. 383 (1986), the State
had permitted the utility to continue to maintain a pole along a
highway within the public right-of-way. The State then had
installed a guardrail behind rather than in front of the utility
pole, contrary to highway-safety standards. The Appellate
Division held the State, not the utility, responsible for the
danger to the motoring public. The Ball court recognized that
compliance with or deviation from a standard of conduct defined
in a statute or regulation is a "relevant circumstance to be
considered" when determining tort liability. Id. at 112. The
court noted that "while the utility is obliged to design
facilities to be installed within the highway rights of way, the
Department of Transportation is primarily responsible for
insuring that appropriate safety standards are satisfied." Ibid.
(citation omitted).
We believe that responsibility for the safety of motorists
should rest with those who own, control, and maintain the
thoroughfare. Although utility companies have a duty to foresee
that motorists will leave the traveled portion of the highway,
the governmental bodies and highway planners are best suited to
determine how the utilities should fulfill that duty. Those
public bodies are in the best position to provide and to enforce
standards and regulations governing utilities. Utilities do not
have the right to locate poles wherever they deem expedient.
Public bodies may by their ordinances and regulations require the
relocation, removal, shielding, or redesign of poles that do not
meet safety standards. In this case, the ordinance required that
the utility place its poles within eighteen inches of the curb,
presumably to facilitate street lighting. No indication exists
in the record that the borough considered whether the pole should
not have been located at the S-curve in the road.
To conclude from a view of the accident scene that a
motorist might foreseeably have deviated from the unmarked curve
in the road and have struck the adjacent utility pole does not
require an engineering degree. Collisions with that pole had
occurred twice before. Although the record does not disclose who
put up the warning sign before the curve and placed a reflector
beside the pole following this accident, we presume the borough
took that action. The public body, or the utility at the public
body's direction, should have done that before this accident. In
light of the two prior collisions with this pole, we might be
inclined to hold the utility company liable. However, we
conclude that highway planners, not utility managers, are best
equipped to determine the location and design of fixtures in or
near a right-of-way. One need only travel on a roadway as well
designed as the Garden State Parkway to note the continuing
improvements in reflectors, exit signs, acceleration-deceleration
lanes, and the many other features of highway safety made by a
State agency for the protection of the motoring public.
A uniform standard of care imposing the responsibility for
highway safety on the public bodies is the proper solution. When
a public utility has located its poles or structures within
public rights-of-way in accordance with the location and design
authorized by the public body, the utility, in the absence of
countermanding directions from the public body, should have no
further duty to protect the motoring public. Often, utility
fixtures are uniformly located at a prescribed distance from curb
lines. See Hellman v. Julius Kolesar, Inc.,
399 N.W.2d 654, 656
(Minn. Ct. App. 1987) (noting that utility pole was located in
line with other utility and traffic fixtures). Public bodies
will want to ensure that the location and design of such fixtures
are approved features of the highway design to engage the
protection of the Tort Claims Act. See Birchwood Lakes Colony
Club, Inc. v. Borough of Medford Lakes,
90 N.J. 582 (1982)
(holding public entity immune from liability only when it
approved in advance the condition of property claimed to be
dangerous or defective).
The judgment of the Appellate Division is affirmed. No
costs.
Justices Clifford and Pollock join in this opinion.
Justice Handler has filed a separate dissenting opinion in which
Justice Stein joins. Chief Justice Wilentz and Justice Garibaldi
did not participate.
SUPREME COURT OF NEW JERSEY
A-
132 September Term 1993
ALTHEA CONTEY,
Plaintiff-Appellant,
v.
NEW JERSEY BELL TELEPHONE
COMPANY and ROCKLAND
ELECTRIC COMPANY,
Defendants-Respondents,
and
JOHN DOE (owner of utility
pole and surrounding
property); BOROUGH OF FRANKLIN
LAKES, COUNTY OF BERGEN; and
STATE OF NEW JERSEY,
Defendants.
HANDLER, J., dissenting.
I dissent in this rather ordinary negligence case because
the majority finds grounds to exonerate utilities from any
responsibility for the placement of telephone poles and, in
effect, accords them unwarranted immunity. Generally, I agree
with Judge Brochin's dissent from the Appellate Division's
judgment substantially for the reasons that he set forth, and
would reverse and remand the case for trial.
The majority seemingly acknowledges that negligence can
occur with respect to the placement of a utility pole along a
travelled roadway that contributes to an accident caused by an
errant motorist whose car leaves the road and strikes the pole.
__ N.J. at __ (slip op. at 5). It thus apparently distinguishes
Oram v. New Jersey Bell Telephone Co.,
132 N.J. Super. 491 (App.
Div. 1975), in which the court ruled that the defendant utility
company was not liable when the plaintiff's car was forced off
the road by another car and hit a utility pole because "a
telephone company is under no obligation of guarding against
extraordinary exigencies created when a vehicle leaves the
travelled portion of a roadway out of control." Id. at 494.
In McMillan v. Michigan State Highway Commission,
393 N.W.2d 332 (1986), the Michigan Supreme Court ruled that a
utility could be found to owe a duty to a motorist who was a
passenger in a car that left the traveled portion of the highway
when the car was struck by a hit-and-run driver and collided with
a utility pole. The McMillan court reversed the trial court's
granting of summary judgment to the utility company. In so
doing, the court overruled its prior case law because it
fail[ed] to impose any obligation of
reasonable conduct [on utility companies] for
the benefit of occupants of vehicles which
leave the traveled portion of the highway.
We fail to see an overriding policy which
would insulate the defendant [utility
company] in all cases in which a pole is
placed outside the traveled portion of the
highway."
The court delineated a number of factors for a court to consider in determining whether summary judgment is appropriate in such utility-pole negligence cases, including "the location of the
pole, its proximity to the roadway, the configuration of the
roadway, whether the utility company had notice of previous
accidents at that location and whether alternative, less
dangerous locations for the pole existed." Id. at 340. The
court continued that "[a]fter considering these factors and any
other factor which may be probative of the issue, the trial
court, upon finding that reasonable minds could differ as to
whether the defendant acted negligently in the placement of the
pole, should place the issue before the jury to decide." Ibid.
The McMillan case fairly accounts for the factors that
would be most relevant in determining whether a utility violated
the duty of care it owes to the public in the placement of
utility poles. In this case a "factor which may be probative of
the issues" could include the existence of the municipal
ordinance adopted by the Borough of Franklin Lakes. See id. at
340; see also Ball v. New Jersey Bell Tel. Co.,
207 N.J. Super. 100, 112 (App. Div.) (recognizing that compliance with or
deviation from standard of conduct defined in statute or
regulation is "relevant circumstance to be considered" by jury in
determining tort liability), certif. denied,
104 N.J. 383 (1986).
However, that ordinance is not determinative, as a matter of law,
in insulating a utility company from liability. See, e.g., Hoyt
v. Public Serv. Elec. & Gas Co.,
117 N.J.L. 106, 107 (E. & A.
1936) (finding basis for negligence suit against utility company
because even though electric-transmission pole was authorized,
"no permit can authorize the construction and maintenance in the
highways of a structure dangerous to ordinary travel"); Adams v.
Atlantic City Elec. Co.,
120 N.J.L. 357, 379 (E. & A. 1938)
(ruling that "[n]o State Highway Commission permit can authorize
the construction and maintenance on the highway of a structure
dangerous to ordinary travel"). See generally Annotation,
Placement, Maintenance, or Design of Standing Utility Pole as
Affecting Private Utility's Liability for Personal Injury
Resulting from Vehicle's Collision with Pole Within or Beside
Highway,
51 A.L.R.4th 602, 611, 615 (1987 & Supp. 1993)
(observing that "courts in most jurisdictions have held or
recognized that a pole's having been erected pursuant to
governmental sanction does not relieve the proprietor from
liability or from a charge of negligence otherwise established,"
and interpreting Adams as holding that "the permit was not
sufficient to render the placement or maintenance of the pole
nonnegligent if that negligence was otherwise established").
Clearly, governmental authorities have the right to
determine the location of utility poles. N.J.S.A. 48:17-11
(providing that utilities must erect poles in accordance with
ordinances and resolutions adopted by local municipalities or
boards of freeholders that designate "the location, number and
size of the poles" and that such poles shall be "so placed as not
to interfere with the safety or convenience of persons or
vehicles traveling on any such street, road or highway"). That
governmental involvement in the placement of utility poles
relieves utilities of all responsibility of reasonable care in
the placement of such poles is unclear, however. Nothing
suggests that the Legislature intended the relevant statutory
scheme to exonerate utility companies of their duty to exercise
reasonable care in the placement of utility poles. Cf. Feldman
v. Lederle Labs.,
97 N.J. 429, 446 (1984) (ruling that regulation
by Food and Drug Administration of drug industry does not relieve
drug manufacturers of duty to provide adequate warnings
concerning harmful risks of their products).
I would reverse the trial court's grant of summary
judgment for defendants and allow plaintiff to prove her cause of
action for negligence.
Justice Stein joins in this opinion.