concurring. Although I concur in the result reached by the majority, in my view, the question presented by this case is the broad one, i. e., whether a defendant engaged in the business of preparing and offering food designed primarily to be consumed on the premises is liable to a patron upon an implied warranty that the food was fit for human consumption. Because this approach would require the overruling of Nisky, I set forth my views in full.
In my opinion the scope of the Nisky decision does cover the instant factual situation. Research disclosed only two jurisdictions which have had occasion to apply the doctrine of implied warranty to food sold in a cafeteria. Feither discussed any distinction for this purpose between a cafeteria and a restaurant. McAvin v. Morrison Cafeteria Co. of La., 85 So. 2d 63 (La. Ct. of App. 1956) ; Franke’s, Inc. v. Wallace, 219 Ark. 467, 242 S. W. 2d 968 (Sup. Ct. *3091951). When a person orders food in a restaurant today, he selects a listed portion for which the restaurateur has set a fixed price. Reality would be ignored if it is said that a sale is not effected, at least as to that food which the patron consumes. Thus, while a distinction can be made between a cafeteria and a traditional restaurant, for present purposes the difference is so negligible that we should face the problem four square.
There are two general lines of authority on the issue of a restaurateur’s liability in implied warranty. Of those jurisdictions which have had the opportunity to pass upon the question, the numerical majority supports the view, referred to as the “Massachusetts-New York rule,” that one serving food for immediate consumption on the premises impliedly warrants that the food served is wholesome and fit for human consumption and is liable for a breach of the implied warranty. The numerical minority of jurisdictions adheres to the view, designated as the “Connecticut-New Jersey rule,” which is exemplified by Nislcy.
In this State the Nisky view was reaffirmed in Corin v. S. S. Kresge Co., 10 N. J. Misc. 489, 159 A. 799 (Sup. Ct. 1932) , affirmed per curiam 110 N. J. L. 378 (E. & A. 1933) . Plaintiff there was injured by a piece of broken glass in coleslaw prepared and served in a restaurant. Recovery was allowed in negligence but not on implied warranty. In Rickner v. Ritz Restaurant Co., 13 N. J. Misc. 818, 181 A. 398 (Sup. Ct. 1935), plaintiff was injured by glass in a sandwich prepared and served in defendant’s restaurant. The court said, “The liability of restaurateurs, for foreign and deleterious substances in food served to patrons, is well settled in our state. It is based, not on the theory of a warranty, but on the theory of negligence.”
Other jurisdictions have reached a similar result where the restaurant customer was served: an unwholesome turkey sandwich, Pappa v. F. W. Woolworth Co., 3 Terry 358, 42 Del. 358, 33 A. 2d 310 (Super. Ct. 1943); a piece of *310tin in sandwich bread, Child’s Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105 (Ct. App. 1938); and a mouse in roast chicken dressing, Kenney v. Wong Len, 81 N. H. 427, 128 A. 343 (Sup. Ct. 1925). Eor other examples of the rule see McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446 (Sup. Ct. 1934); Albrecht v. Rubenstein, 135 Conn. 243, 63 A. 2d 158, 7 A. L. R. 2d 1022 (Sup. Ct. Err. 1948); Rowe v. Louisville & N. R. R., 29 Ga. App. 151, 113 S. E. 823 (Ct. App. 1922); F. W. Woolworth Co. v. Wilson, 74 F. 2d 439, 98 A. L. R. 681 (5 Cir. 1934); Horn & Hardart Baking Co. v. Lieber, 25 F. 2d 449 (3 Cir. 1928).
The Connecticut-Few Jersey rule has been severely criticized, however. As already noted, the rule was based on the belief that at common law an innkeeper merely uttered his food; and therefore, by analogy, the service of food in a restaurant today does not constitute a sale. But there is considerable doubt that a rule to that effect ever existed at common law. Dickerson, Products Liability and the Food Consumer, p. 26 (1951).
Eor many years the rule prevailed in England that service of food by innkeepers and victualers was not a sale within the meaning of the bankruptcy statute. Saunderson v. Rowles, 4 Burr. 2065, 98 Eng. Rep. 77 (1767); Crisp v. Pratt, Cro. Car. 549, 79 Eng. Rep. 1072 (1640). The reference in Parker v. Flint, 12 Mod. 254, 88 Eng. Rep. 1303 (1699), was to this line of authority. Yet these cases are not really related to the question whether the service of food constitutes a sale in a sense relevant here. Dickerson, supra, at p. 162; Perkins, Unwholesome Food as a Source of Liability, 5 Iowa L. Bull. 86, 100 (1920). And there are dicta which may be interpreted to the effect that the service of unwholesome food would have given rise to liability for breach of warranty. Burnby v. Bollett, 16 M. & W. 644, 153 Eng. Rep. 1348, 1350, 1353 (1847). See 1 Rolle’s Abridgement, p. 90, ss. (p), 1 and 2 (1668). (It is interesting to note that today a restaurateur in *311England is held liable on the sale principle. Lockett v. A. & M. Charles, Ltd. [1938] 4 All. E. R. 170 (K. B.).)
The weakness of the Nisky principle is also recognized in Prosser, Torts § 83, at pp. 495-6 (2d ed. 1955):
“Some courts still cling to the notion, inherited from the days of innkeepers when the guest paid a lump sum for lodging, meals, and a stable for his horse, that such a service is not a sale, and so no warranty is to be implied. It is obvious that such a theory is entirely unsuited to modern restaurants, with ‘orders’ of definite quantity served at fixed prices; and here again the great majority of the courts have imposed strict liability upon the restaurant owner, finding that the food is sold, and that there is obvious reliance upon the seller’s implied assurance.”
Cases which hold a restaurateur liable, absent negligence, are founded on several theories. As noted in 2 Harper & James, The Law of Torts, pp. 1577-8:
“Difficulty here springs from the old notion that the innkeeper or victualer did not sell the food he served to guests, but only conferred upon them the privilege of eating it on the premises. Some courts still apply this quaint concept and find no warranty for want of a sale. Others, more realistic than antiquarian, find a sale and imply the warranty. Still others imply the warranty * * * without regard to whether or not the transaction is a sale or a mere ‘utterance’ of food.”
The following cases are typical of holdings that a sale has been made. Cliett v. Launderdale Biltmore Corp., 39 So. 2d 476 (Fla. Sup. Ct. 1949); Vogel v. Thrifty Drug Co., 43 Cal. 2d 184, 272 P. 2d 1 (Sup. Ct. 1954); Barfield v. F. W. Woolworth Co., 329 Mass. 641, 110 N. E. 2d 103 (Sup. Jud. Ct. 1953); Zorinsky v. American Legion, Omaha Post No. 1, 163 Neb. 212, 79 N. W. 2d 172 (Sup. Ct. 1956); Conklin v. Hotel Waldorf Astoria Corp., 5 Misc. 2d 496, 161 N. Y. S. 2d 205 (N. Y. City Ct. 1957); Arnaud’s Restaurant, Inc. v. Cotter, 212 F. 2d 883 (5 Cir. 1954), cert. den. 348 U. S. 915, 75 S. Ct. 295, 99 L. Ed. 717 (1955). And in Ford v. Waldorf System, Inc., 57 R. I. 131, 188 A. 633, 636 (Sup. Ct. 1937), Mr. Justice Capotosto summarizes the reasons for so holding:
*312“We believe that, both at common law and under the Sales Act, the furnishing of food by a restaurant keeper under modern conditions, at least where the customer orders the kinds of food desired and the prices are fixed, is a sale with an implied warranty of quality as to the wholesomeness of the food. We further find no reason to differentiate, in this respect, between a customer, who, as frequently happens, buys food to consume elsewhere, and one who eats similar food in the restaurant, even though some service is furnished with it. It seems to us quite inconsistent to say that there is a sale of the food in the former instance and that there is no such sale but only a furnishing of service in the latter. The essence of the transaction in both instances is the quality and fitness of the food rather than the place where the food is to be eaten.”
Upon an analysis of Nisky and the authorities relied upon by that court for its opinion and upon the balancing of the views of the Connecticut-New Jersey rule against the Massachusetts-New York rule, I feel that the latter is much more effective in securing the public health and safety. At the same time it is more realistic.
Plaintiff here selected and purchased his food at a counter and was free to eat wherever he might choose, either inside or outside the premises. Yiewed in this light, I perceive no material difference between the instant case and those which hold that retail dealers impliedly warrant the fitness for human consumption of the food they sell for consumption off the premises. Clearly the transaction is no less a sale than that where a customer purchases a loaf of bread, Simon v. Graham Bakery, 17 N. J. 525 (1955); a can of peaches, Griffin v. James Butler Grocery Co., 108 N. J. L. 92 (E. & A. 1931); cheese buns, Duncan v. Juman, 25 N. J. Super. 330 (App. Div. 1953); or a can of pineapple juice, Stave v. Giant Food Arcade, 125 N. J. L. 512 (Sup. Ct. 1940); 1 Williston, Sales § 242b, p. 640 (rev. ed. 1948); Vold, Sales § 94, p. 453 (2d ed. 1959). As noted in the majority opinion the Legislature has recognized the wisdom of treating all such situations alike by its enactment of the Uniform Commercial Code, effective January 1, 1963. N. J. S. A. 12A:2-314(1).
*313Denham also contends that if Nisky is to be overruled, the Legislature rather than this court should do so. Judge-made law is always subject to re-examination. Cohen v. Kaminetsky, 36 N. J. 276, 282 (1961); Fernandi v. Strully, 35 N. J. 434, 450 (1961), overruling Weinstein v. Blanchard, 109 N. J. L. 332 (E. & A. 1932); and Weintraub, “Judicial Legislation,” 81 N. J. L. J. 545 (1958). See Collopy v. Newark Eye & Ear Infirmary, 27 N. J. 29, 46 (1958), overruling the long established doctrine of charitable immunity. Mr. Justice Jacobs there noted that even though judges of an earlier generation believed their decision to be a sound instrument of judicial policy in furtherance of the moral, social and economic welfare of the people, yet, “When judges of a later generation firmly reach a contrary conclusion, they must be ready to discharge their own judicial responsibilities in conformance with modern concepts and needs.” Here, then, as in Collopy, we should declare our own overruling of Nisky.
Although I would hold that the transaction in issue does constitute a sale and gives rise to an implied warranty of fitness, in my opinion not all injured consumers should be limited to recovery under the intricate distinctions present in the law of sales. “[P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” Traynor, J., dissenting in Trust v. Arden Farms Co., 50 Cal. 2d 217, 324 P. 2d 583, 595, 81 A. L. R. 2d 332 (Sup. Ct. 1958). The possibility of application of the warranty theory to fields other than sales is explored in Earnsworth, “Implied Warranties of Quality in Non-sales Cases,” 57 Colum. L. Rev. 653 (1957) and eases there cited; 1 Williston, Sales, supra, § 242b, pp. 640-41; Uniform Commercial Code § 2-313, comment 2 (1958 ed.).
With respect to Denham’s assertion that any overruling of Nislcy should be prospective as compared to retrospective, the general rule in civil cases in this State is that a change *314in the law by a judicial decision is retrospective in effect. Dalton v. St. Luke’s Catholic Church, 27 N. J. 22, 26 (1958); Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N. J. 47, 49 (1954).
I am disturbed by the possible application of a new theory of liability to other potential defendants. Nevertheless, in my opinion the effect of a decision overruling a former doctrine should be limited to prospective application only where a defendant demonstrates affirmatively that he has been prejudiced to a substantial degree by justifiable reliance upon a rule previously stated by this court. Compare Llewellyn, The Common Law Tradition: Deciding Appeals, p. 303 (1960), with Keeton, "Creative Continuity in the Law of Torts,” 75 Harv. L. Rev. 463, 492 (1962). The circumstances here do not call for a departure from the general rule. Denham did not implead Manhattan, the supplier of the frankfurters, under R. R. 4:14-1. If it did so, it might have been held harmless. No justifiable reliance is shown. Arrow Builders Supply Corp. v. Hudson Terrace Apts., supra, 16 N. J., at p. 50. See Levy, “Realist Jurisprudence and Prospective Overruling,” 109 U. Pa. L. Rev. 1 (1960); and Note, “Prospective Operation of Decisions Holding Statutes Unconstitutional or Overruling Prior Decisions,” 60 Harv. L. Rev. 437, 440 (1947).
I would affirm.