concurring in part and dissenting in part.
I join in Part A of the majority’s opinion holding that the New Jersey Products Liability Act (NJPLA) encompasses both oral and written failure to warn claims. I also join in Part B to the extent that it holds that the NJPLA generally subsumes common law product liability claims. I respectfully dissent, however, as to Parts C and D because I conclude that the NJPLA does not subsume a cause of action based on the negligent performance of a more stringent duty arising out of a contract independent of the statutory obligations.
I.
The New Jersey legislature stated that the NJPLA was “not intended to codify all issues relating to product liability, but only to deal with matters that require clarification.” NJPLA § 2A:58C-1. Thus, the legislature stated affirmatively that the Act did not canvass the entire legal terrain of actions brought to recover damages caused by defective products. There exists no indication that the legislature intended to eliminate causes of actions based on the negligent performance of an independent contractual duty.
The majority opinion holds that the plaintiff in this case should not be permitted to bring a separate cause of action based on breach of a contract between the manufacturer of the product and its distributor because the contractual obligation at issue does not “add much” to the statutory duty to warn imposed by § 2A:58C-4 the NJPLA.1 I disagree. Had the separate “dealer/distributor” contract simply reiterated the statutory language of the NJPLA, then the contract would be nothing more than a contract to enforce the law. It would make no difference if the plaintiff sued on the contract or under the statute because they would be one and the same.
Here, however, the dealer/distributor contract required more than just communication of adequate information to the purchaser of the machine; the agreement between Morbark Industries and Morbark Pennsylvania specified the nature, form, and extent of the person-to-person oral demonstration the purchaser of a Super Beever was entitled to receive. The agreement provided that Morbark Pennsylvania
Not deliver any Morbark Product until it has been properly set up and adjusted; until the Dealer has inspected a copy of the operator’s manual which is to be furnished to the purchaser; and until the purchaser, or anyone he designates, has been instructed as to the safe and proper operation of the Morbark product.
This contractual duty required more than simply an oral warning; it required that an agent of Morbark give the purchaser a “start-up demonstration.”
Upon performance of the start-up demonstration by the factory representative, the *496representative was to fill out a “warranty validation report.” The report listed five items to be checked off by the representative as they were completed; the customer was to have been instructed on operation in all safety aspects of operating and maintaining the equipment; furnished with all parts, maintenance and instruction manuals; instructed on equipment maintenance and procedures; the representative was to check that all operator and warning decals were properly displayed on the equipment; and finally, the equipment was to have been observed under actual working conditions for at least one hour.
The start-up demonstration procedures, therefore, entailed considerably more than an oral warning to a purchaser of the dangers of operating a Super Beever. The start-up demonstration envisioned an instructional session where there would be a visual operation of the woodchipping machine, and an opportunity for interaction between the knowledgeable factory representative and the inexperienced purchaser. Put simply, a written warning appended to the product, or an oral warning of the danger of the product or its operation, is not the equivalent of an adequate, hands-on and important instructional demonstration of the operation of a hazardous piece of mobile equipment.
The possibility of recovering under a claim of strict liability for products liability should not affect Repola’s right to recover as a third party beneficiary on the dealer/distributor agreement so obviously drawn for the purchaser’s protection. Separate and apart from the obligations owing by a seller of a product to the purchaser under the New Jersey Products Liability Act, the defendant’s duty here had its basis in a contract between the manufacturer and the dealer, and “the negligent performance of such an undertaking may give rise to a cause of action by third persons, such as plaintiff.” Essex v. New Jersey Bell Tel. Co., 166 N.J.Super. 124, 399 A.2d 300, 302 (1979). The plaintiff, upon his purchase of the Super Beever, became entitled to a “start-up” demonstration. The cost of the demonstration was included in the purchase price of the machine. The president of the defendant corporation, Morbark Pennsylvania, testified that “when a customer purchases a piece of equipment like the Super Beever, ... I feel it’s important to have a start-up as well [as an owner’s manual].”
The majority does not decide whether the contract is admissible under the “flag” of the NJPLA claim. The refusal to decide the issue of admissibility illustrates the anomaly of the majority’s position. If, as the majority argues, the dealership agreement requires no more than the obligation imposed by the NJPLA, then the admissibility of the contract should be a non-issue. Common sense tells us that, in the circumstances before us, the difficulty of the plaintiff’s recovery is increased if the contract is ruled inadmissible. The existence of a contract simplifies the plaintiff’s ease; the plaintiff need not prove that the “start-up demonstrations” were statutorily required to render the product safe; the plaintiff need only prove that he was entitled to receive a “start-up demonstration” and that defendant’s negligence in failing to provide such a demonstration proximately caused the accident. The manufacturer’s requirement that the purchaser of the machine receive the “start-up demonstration” perceptibly provided for a standard of care “commensurate with the reasonable foreseeable danger, such as would be reasonable in the light of the reasonable risk.” Essex, 399 A.2d at 302, quoting Wytupeck v. Camden, 25 N.J. 450, 462, 136 A.2d 887, 894 (1957).
The NJPLA is generous to consumers in that it eliminates the need for the plaintiff to prove negligence on the part of the defendant; a plaintiff can recover by just proving that the product “failed to contain adequate warnings or instructions.” Thus, under the statute, the additional element of negligence — that the manufacturer or seller knew or should have known of the defect — need not be proven. The NJPLA, intended to alleviate the burden of proof of plaintiffs damaged by defective products, is now being used to increase the burden on the plaintiff. Ironically, the majority has turned the shield into a sword.
*497II.
The majority remarks that the submission of the negligence claim perhaps could have been overlooked but for the inconsistent jury verdict. The majority seems to believe that its conclusion that the negligence claim should have been subsumed under the NJPLA somehow creates an inconsistency in the jury verdict. When the jury verdict is closely scrutinized, however, there appears no inconsistency; indeed, the verdict displays that the jury possessed a sophisticated understanding of the legal principles involved.
The jury considered the defendant’s liability on two counts. In the first count, the jury considered whether the product was defective under a theory of strict liability pursuant to the NJPLA and found that the product “was defective based on the defendants’ failure to provide adequate warnings concerning the Super Beever.” In the second count, the jury found that defendant Morbark Pennsylvania was negligent in the non-performance of “start-up instructions.” Thus, the jury found both that the product was defective and that the defendant was negligent with respect to the start-up instructions.
The jury’s finding that only the negligence with respect to the start-up instructions proximately caused the accident does not present an inconsistency. The judge instructed the jury that proximate cause meant “the defect in the product was a substantial factor which singly or in combination with another cause brought about the accident.” In the portion of the charge relating to the claim of negligence, the judge described proximate cause as “the efficient cause of the accident. It is a cause which necessarily sets other causes in motion and which is a substantial factor in bringing about the accident and the damages complained of.” (emphasis supplied)
I do not believe there is any inconsistency in finding only one defect to be the proximate cause of an accident. The jury found that the instruction manual and the decals placed on the machine to be defective, but that only the negligent non-performance of the start-up instructions proximately caused the accident. In so doing, the jury merely identified the negligent failure to give start-up instructions as “the efficient cause of the accident.” The jury’s verdict merely underscores the above discussion; the contract to perform a start-up demonstration provided the plaintiff with greater protection than required by the NJPLA.
III.
In sum, I would hold that under the law of New Jersey the NJPLA does not subsume a cause of action based on the negligent performance of a contractual duty arising separately and apart from the obligations set forth in the NJPLA. The contract required something over and above mere warnings, specifically, an oral demonstration. I would also hold that a jury verdict finding a product defective because of inadequate warnings is not inconsistent with a verdict that the proximate cause of the accident was the failure of the dealer to give the product purchaser the start-up demonstration required by the separate contract.
Accordingly, I would affirm the judgment of the district court.
. This leaves the interesting question of whether the majority would dismiss the suit for failure to state a claim if the plaintiff brought an action based solely on the negligent performance of the dealer agreement and not under the NJPLA.