OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
Appellant Raritan Trucking Corporation (“Raritan”) brought this action to recover property damages resulting from a plane crash, for which damages the appellee Continental Can Corporation (“Continental”) is allegedly responsible. The action was commenced in the Superior Court of New Jersey, Law Division, Middlesex County, against three defendants and from there it was removed by the defendants to the United States District Court.
At trial at the close of the plaintiff’s case, the. District Court directed verdicts
and entered judgment in favor of all defendants. Raritan appeals only from the entry of judgment in favor of Continental.
The ill-fated airplane was an Aero Commander Model 680 FP, owned by Raritan at the time of the crash. Prior to the crash the airplane was garaged in
Continental’s hangar at Morristown, New Jersey, and was serviced there by Continental. The airplane crashed on October 27, 1963, near White Sulphur Springs, West Virginia, at the end of a flight from the Morristown Municipal Airport. There was strong evidence from which the jury might have concluded that the cause of the crash was a wing separation that occurred as the pilot engaged in aerobatic maneuvers in an effort to lower a malfunctioning landing gear.
Raritan’s complaint against Continental was based on two alternative theories: (1) negligence in inspecting, maintaining, and servicing the airplane, and (2) breach of warranty or strict liability in tort.
Since this appeal arises from a directed verdict for the defendant, “[t]he evidence, including the inferences of which it is reasonably susceptible, must be viewed in the light most favorable to the plaintiff.” Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 288 (3d Cir. 1963), aff’d by an equally divided court, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964).
See
5A Moore’s Federal Practice ¶ 50.02 [1], at 2326-9 (2d ed. rev. 1970). And since this is a diversity case, we are required to apply the law of New Jersey in determining whether the evidence, thus viewed, constituted an actionable claim against Continental on either of the two grounds upon which relief was sought. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230 (3d Cir. 1944); Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908 (3d Cir.), cert. denied, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770 (1948); Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960);
see
5A Moore’s Federal Practice ¶ 50.06 (2d ed. 1966). We conclude that the evidence presented by Raritan established a prima facie case against Continental, and thus we reverse and remand for a new trial.
I. EVIDENCE OF NEGLIGENCE
Recovery may be had in New Jersey for damages caused by a defendant’s negligence — “conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm.” Sanzari v. Rosenfeld, 34 N.J. 128, 134, 167 A.2d 625, 628 (1961). “The standard of care is the conduct of the reasonable man of ordinary prudence under the circumstances. . . . The greater the risk, the greater is the care required— the reasonable man would so behave.” Ambrose v. Cyphers, 29 N.J. 138, 144, 148 A.2d 465, 468 (1959). It is virtually beyond dispute' that under the circumstances of this case Continental was required to exercise an increased amount of care in its maintenance of Raritan’s plane, since any malfunction might well have disastrous consequences.
It is also clear, however, that
“recovery cannot be had merely upon proof of the happening of an accident.
Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof. . . . ”
Murphy v. Terzako, 14 N.J.Super. 254, 259, 82 A.2d 1, 3 (App.Div.1951);
see also
Mockler v. Russman, 102 N.J.Super. 582, 588, 246 A.2d 478, 480 (App.Div. 1968), certif. denied, 53 N.J. 270, 250 A.2d 135 (1969).
“[T]he existence of a possibility of a defendant’s responsibility for a plaintiff’s injuries is insufficient to impose liability. ‘. . . [T]he evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant.’ ”
Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141, 84 A.2d 281, 285 (1951). Whether the evidence produced by Rari-tan was sufficient to justify such an inference is the question we face now.
Raritan was able to produce no evidence of specific acts or omissions by Continental that might have caused the landing gear to malfunction. Nevertheless, there was circumstantial evidence that might have convinced the jury that Continental had been negligent in servicing the landing gear.
Evidence produced at trial showed that Raritan had taken possession of the plane in October 1962 at which time the plane had been flown ten and one-half hours, and that at the time of the crash one year later, total flight time was about 275 hours. It would be reasonable to suppose that during the year the plane had landed many times and that the landing gear had operated successfully each time.
Service Bulletin No. 83 was issued by Aero Commander, Inc., the manufacturer of the plane, on September 13, 1963. The purpose of the Service Bulletin was to correct a possible landing gear strut overextension that would “prevent the gear from locking when placed in the up position.” Part I of the bulletin called for inspection of the strut within the next 25 hours’ flight time, while Part II of the bulletin specified modifications to prevent future strut overextension. Compliance with Part II was to be immediate in cases where strut overextension was found during the Part I inspection,, but could be deferred in cases where no overextension was found during the Part I inspection.
The Aircraft Flight Log shows that on October 16, 1963, Continental performed Part I of the Service Bulletin and found no strut overextension. After this inspection the plane was flown about 16 hours and made 15 landings with no noted difficulty. On October 25 Continental undertook the modifications required by Part II of the Service Bulletin, and on the very next flight two days later the crash occurred.
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OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
Appellant Raritan Trucking Corporation (“Raritan”) brought this action to recover property damages resulting from a plane crash, for which damages the appellee Continental Can Corporation (“Continental”) is allegedly responsible. The action was commenced in the Superior Court of New Jersey, Law Division, Middlesex County, against three defendants and from there it was removed by the defendants to the United States District Court.
At trial at the close of the plaintiff’s case, the. District Court directed verdicts
and entered judgment in favor of all defendants. Raritan appeals only from the entry of judgment in favor of Continental.
The ill-fated airplane was an Aero Commander Model 680 FP, owned by Raritan at the time of the crash. Prior to the crash the airplane was garaged in
Continental’s hangar at Morristown, New Jersey, and was serviced there by Continental. The airplane crashed on October 27, 1963, near White Sulphur Springs, West Virginia, at the end of a flight from the Morristown Municipal Airport. There was strong evidence from which the jury might have concluded that the cause of the crash was a wing separation that occurred as the pilot engaged in aerobatic maneuvers in an effort to lower a malfunctioning landing gear.
Raritan’s complaint against Continental was based on two alternative theories: (1) negligence in inspecting, maintaining, and servicing the airplane, and (2) breach of warranty or strict liability in tort.
Since this appeal arises from a directed verdict for the defendant, “[t]he evidence, including the inferences of which it is reasonably susceptible, must be viewed in the light most favorable to the plaintiff.” Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 288 (3d Cir. 1963), aff’d by an equally divided court, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964).
See
5A Moore’s Federal Practice ¶ 50.02 [1], at 2326-9 (2d ed. rev. 1970). And since this is a diversity case, we are required to apply the law of New Jersey in determining whether the evidence, thus viewed, constituted an actionable claim against Continental on either of the two grounds upon which relief was sought. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230 (3d Cir. 1944); Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908 (3d Cir.), cert. denied, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770 (1948); Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960);
see
5A Moore’s Federal Practice ¶ 50.06 (2d ed. 1966). We conclude that the evidence presented by Raritan established a prima facie case against Continental, and thus we reverse and remand for a new trial.
I. EVIDENCE OF NEGLIGENCE
Recovery may be had in New Jersey for damages caused by a defendant’s negligence — “conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm.” Sanzari v. Rosenfeld, 34 N.J. 128, 134, 167 A.2d 625, 628 (1961). “The standard of care is the conduct of the reasonable man of ordinary prudence under the circumstances. . . . The greater the risk, the greater is the care required— the reasonable man would so behave.” Ambrose v. Cyphers, 29 N.J. 138, 144, 148 A.2d 465, 468 (1959). It is virtually beyond dispute' that under the circumstances of this case Continental was required to exercise an increased amount of care in its maintenance of Raritan’s plane, since any malfunction might well have disastrous consequences.
It is also clear, however, that
“recovery cannot be had merely upon proof of the happening of an accident.
Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof. . . . ”
Murphy v. Terzako, 14 N.J.Super. 254, 259, 82 A.2d 1, 3 (App.Div.1951);
see also
Mockler v. Russman, 102 N.J.Super. 582, 588, 246 A.2d 478, 480 (App.Div. 1968), certif. denied, 53 N.J. 270, 250 A.2d 135 (1969).
“[T]he existence of a possibility of a defendant’s responsibility for a plaintiff’s injuries is insufficient to impose liability. ‘. . . [T]he evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant.’ ”
Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141, 84 A.2d 281, 285 (1951). Whether the evidence produced by Rari-tan was sufficient to justify such an inference is the question we face now.
Raritan was able to produce no evidence of specific acts or omissions by Continental that might have caused the landing gear to malfunction. Nevertheless, there was circumstantial evidence that might have convinced the jury that Continental had been negligent in servicing the landing gear.
Evidence produced at trial showed that Raritan had taken possession of the plane in October 1962 at which time the plane had been flown ten and one-half hours, and that at the time of the crash one year later, total flight time was about 275 hours. It would be reasonable to suppose that during the year the plane had landed many times and that the landing gear had operated successfully each time.
Service Bulletin No. 83 was issued by Aero Commander, Inc., the manufacturer of the plane, on September 13, 1963. The purpose of the Service Bulletin was to correct a possible landing gear strut overextension that would “prevent the gear from locking when placed in the up position.” Part I of the bulletin called for inspection of the strut within the next 25 hours’ flight time, while Part II of the bulletin specified modifications to prevent future strut overextension. Compliance with Part II was to be immediate in cases where strut overextension was found during the Part I inspection,, but could be deferred in cases where no overextension was found during the Part I inspection.
The Aircraft Flight Log shows that on October 16, 1963, Continental performed Part I of the Service Bulletin and found no strut overextension. After this inspection the plane was flown about 16 hours and made 15 landings with no noted difficulty. On October 25 Continental undertook the modifications required by Part II of the Service Bulletin, and on the very next flight two days later the crash occurred.
Although Raritan presented evidence of circumstances that might have some slight relevance to Continental’s negligence,
we believe that the infer
ence of negligence arising from the malfunction alone was sufficient to justify submitting the case to the jury.
The law in New Jersey as to res ipsa loquitur has not changed insofar as relevant here since it was applied in Joseph T. Ryerson & Sons v. H. A. Crane & Bro., 417 F.2d 1263 (3d Cir. 1969). There we stated:
“The law of New Jersey which controls this lawsuit generally requires the plaintiff to satisfy three elements for a res ipsa loquitur charge:
“(1) The accident which produced the injury was one which ordinarily does not happen unless someone was negligent;
“(2) The instrumentality or agency which caused the accident was under the exclusive control of the defendant; and
“(3) The circumstances indicated that the untoward event was not caused or contributed to by an act or neglect on the part of the injured person.” 417 F.2d at 1265.
Here, although the question is close, we believe that the requisite elements were satisfied. An airplane’s landing gear does not ordinarily stick in the up position unless there has been some breach of care on the part of someone. The circumstances here indicate that the landing gear failure was not caused or contributed to by any of Raritan’s employees.
As to the “exclusive control” requirement, New Jersey has liberalized greatly the literal meaning of that term. In Lorenc v. Chemirad Corp.,
supra
n. 4, the Supreme Court of New Jersey stated:
“Modern manufacturing, packing, shipping and marketing conditions . . . brought the realization that to hold strictly to the view that inferences of negligence became permissible only on proof of exclusive control of the injuring agency at the time of the mishap would largely destroy the efficacy of the principle [of res ipsa loquitur]. The result was a sensible and logical broadening so as to permit the inference where the total circumstances showed a probability that defendant’s lack of due care while the agency was in his possession and control was responsible for the casualty, and eliminated the probability of efficient participation by some other cause. [Citations omitted.] Harper & James suggest that as generally applied the requirement for exclusive control ‘is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably “such that the defendant would be responsible for any negligence connected with it.”’ 2
The Laws of Torts
(1956)
p.
1086. The present contours of the principle represent no more than an effort on the part of the law to adapt itself to the current environment.” 37 N.J. at 70-71,179 A.2d at 408.
As we stated in the
Ryerson
case,
supra.
“Both the Restatement and the law of New Jersey contemplate that the
plaintiff eliminate all other possible causes by a preponderance of the evidence.” 417 F.2d at 1266.
Raritan produced two expert witnesses, both of whom testified, in essence, that the failure of the landing gear to operate properly might have been due to one of two different causes: (1) failure of the uplock mechanism to operate, and (2) overextension of the landing gear itself.
The District Court in directing a verdict for the defendants assumed that the manufacturer would be responsible for an uplock mechanism failure, while Continental would be responsible for an overextension of the landing gear.
While such an assumption would seem inappropriate on the record,
the fact that Continental might have been responsible for either of the suggested causes of the malfunction does not change appreciably the issue we face, since the record does not eliminate the possibility that the manufacturer may have been responsible for the landing gear malfunction.
Nevertheless, there was sufficient evidence from which the jury might rea
sonably conclude that Continental and not the manufacturer was responsible for the landing gear failure. The fact that the plane had flown more than 275 hours without complaint about the landing gear would support an inference that there was no manufacturing defect in the landing gear. Moreover, the fact that Continental had done extensive work on the landing gear immediately before the fatal flight might lead to the reasonable inference that some default on the part of Continental rather than the manufacturer was the actual cause of the malfunction.
In Sabloff v. Yamaha Motor Co., 113 N.J.Super. 279, 273 A.2d 606 (App.Div.), aff’d per curiam, 59 N.J. 365, 283 A.2d 321 (1971), the plaintiff was injured when the front wheel of his motorcycle suddenly stopped turning.
“Plaintiff’s expert gave two
possible
causes of the front wheel’s failure to rotate. Plaintiff’s testimony negated the one — error on the part of plaintiff in activating the brake. This left the second cause — improper tightening of the nut at the end of the axle bolt, thereby producing excessive side play and locking of the wheel — ‘available to the jury without recourse to speculation’. . . .” 113 N.J.Super. at 288, 273 A.2d at 610-611 (emphasis in original).
See also
Smith v. Frontier, Inc., 53 Wash.2d 805, 337 P.2d 299 (1959), discussed with approval by the court in
Sabloff, supra.
That there is reasonable basis for such an inference in this case makes inapplicable those New Jersey cases holding that
“where it appears that the injuries were occasioned by one of two causes, for one of which defendant is responsible, but not for the other, the plaintiff must fail, if the evidence does not show that the injury was the result of the former cause. If, under the testimony, it is just as probable that it was caused by the one as the other, he cannot recover.”
Stumpf v. Delaware, L. & W. R. R., 76 N.J.L. 153, 69 A. 207 (Sup.Ct.1908).
See also
McCombe v. Public Service Ry., 95 N.J.L. 187, 112 A. 255 (Ct.Err. & App.1920); Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, 20 A.2d 352 (Ct.Err. & App.1941); Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 66 A.2d 159 (1949); Hansen v. Eagle-Picher Lead Co.,
supra;
Jakubowski v. Minnesota Mining & Mfg. Co., 42 N.J. 177, 199 A.2d 826 (1964).
II. BREACH OF WARRANTY OR STRICT LIABILITY IN TORT
Although actions based on breach of implied warranty of fitness and those based on strict liability in tort may be distinguished, in New Jersey the two actions have tended to become merged.
In discussing the doctrine of strict liability in tort, the New Jersey Supreme Court in Santor v. A. & M. Karagheusian, Inc.,
supra
n. 10, stated:
“Such doctrine stems from the reality of the relationship between manufacturers of products and the consuming public to whom the products are offered for sale. As we indicated in [Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960)], the great mass of the purchasing public has neither adequate knowledge nor sufficient opportunity to determine if articles bought or used are defective. Obviously they must rely upon the skill, care and reputation of the maker. [Citation omitted.] It must be said, therefore, that when the manufacturer presents his goods to the public for sale he accompanies them with a representation that they are suitable and safe for the intended use. . . .
“Under the strict liability in tort doctrine, as in the case of express or implied warranty of fitness or merchantability, proof of the manufacturer’s negligence in the making or handling of the article is not required. If the article is defective,
i.e.,
not reasonably fit for the ordinary purposes for which such articles are sold or used, and the defect arose out of the design or manufacturer or while the article was in control of the manufacturer, and it proximately causes injury or damage to the ultimate purchaser or reasonably expected consumer, liability exists.” 44 N.J. at 64-65, 66-67, 207 A.2d at 311, 313.
From its origin in the
Henningsen
case cited in the text quoted above, the strict liability theory has grown to be a strong one in New Jersey.
But to date no New Jersey ease has extended the strict liability theory to a case in which there have been no goods or other property supplied. Nor do we think that the New Jersey courts would extend strict liability to this case.
We appreciate the argument that in the instant case many of the policy considerations supporting strict liability in sales cases are present. In Cintrone v. Hertz Truck Leasing & Rental Service,
supra
n. 11, the New Jersey Supreme Court outlined the considerations that led it to apply strict liability in a case involving an accident caused by defective brakes in a rented truck:
“Most of the significant criteria which in sales transactions give rise to an implied warranty of fitness or which support a cause of action based on strict liability in tort, are present in the type of lessor-lessee relationship now before us. (1) The risk of harm to the lessee, his employees, pas
sengers, and members of the public from the operation of a defective truck on the highways is great; (2) the representation of the lessor that the vehicles are fit for use for the lessee’s purposes is of major proportions. (The service, maintenance and repair undertaking in this case . . . magnifies the representation of fitness.); (3) the reliance of the lessee on the representation of the lessor is bound to be great.” 45 N.J. at 456, 212 A.2d at 781.
Here we have a similar risk of harm to Raritan, its employees, passengers, and members of the public from the operation of a plane with inoperable landing gear. In turning the plane over to Raritan after repairing it, Continental necessarily represented that the landing gear remained in proper operating condition. And Raritan’s reliance was, of necessity, great. Raritan had neither adequate knowledge nor sufficient opportunity to determine if the work on the landing gear had left it in proper operating condition, and thus had to rely upon the skill, care, and reputation of Continental. Because these elements are present here, we are convinced that application of strict liability by the New Jersey courts in this case cannot be predicted with great assurance.
There is much to suggest, however, that New Jersey would restrict application of strict liability to those cases involving sales of goods or other property and to those involving transactions analogous to sales.
In Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539 (Hudson County Ct., L.Div.1967), aff'd per curiam sub nom. Magrine v. Spector, 100 N.J.Super. 223, 241 A.2d 637 (App.Div.1968), aff’d per curiam, 53 N.J. 259, 250 A.2d 129 (1969), strict liability was held not to extend to an action against a dentist by a patient injured when a latently defective hypodermic needle broke in the patient’s jaw. The court considered at length the policy considerations supporting strict liability and found those considerations inapplicable, noting:
“[T]he
essence
of the transaction between the retail seller and the consumer relates to the
article sold.
The seller is
in the business
of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or a physician offers, and is paid for, his professional services and skill. That is the
essence
of the relationship between him and his patient.
“ . . . Defendant dentist is not in the business of supplying needles.” 94 N.J.Super. at 235-236, 227 A.2d at 543-544.
This court relied in part upon the
Ma-grine
decision in LaRossa v. Scientific Design Co.,
supra
n. 10, where we noted:
“In all the cases decided by the New Jersey courts there existed a defect in the product which caused the injury to the ultimate consumer. Even when described as strict liability in tort the underlying principle has been analogized to the sale of goods. . . .
“Whatever may be the ultimate limit of the rule of strict liability in tort in New Jersey there lies at the foundation of the decided cases a defect in the product which caused injury to the innocent user.” 402 F.2d at 941, 942.
That case involved a wrongful death and survival action on behalf of a decedent who had contracted cancer as a result of his exposure to radioactive dust during the loading of a catalyst into a reactor, the entire operation being supervised by the defendant. We rejected there the argument that New Jersey would extend strict liability to such a case.
The New Jersey Supreme Court’s treatment of the
Magrine
case in New-
mark v. Gimbel’s, Inc.,
supra
n. 11, is also instructive. There the plaintiff had been injured when an allegedly defective permanent wave solution was applied to her hair by the defendant beauty parlor. The court, in holding the beauty parlor strictly liable for defects in the permanent wave solution, was careful to note the sales aspects of what it saw as a “sales-service hybrid transaction.” It will be noted that the court there did not hold that the beauty parlor operator would be strictly liable for nonnegligent mistakes in its own application of the solution, but only for defects in the solution itself.
The Supreme Court in
Neurmark
distinguished the case before it from a dentist or doctor’s services, especially those cases where the dentist or doctor administers medicines or provides them to the patient for home consumption, in which cases strict liability would not be imposed. The court noted:
“Such men are not producers or sellers of property in any reasonably acceptable sense of the term. In a primary sense they furnish services .... Thus their paramount function — the essence of their function— ought to be regarded as the furnishing of opinions and services.” 54 N.J. at 597, 258 A.2d at 703.
While the present case may be distinguishable in some respects from the professional services of a doctor or dentist, we believe that the distinction would not be sufficient to cause the New Jersey Supreme Court to apply strict liability in this case. Accordingly, insofar as Continental’s liability was predicated on a theory of strict liability in tort, the District Court was correct in directing a verdict for the defendant Continental.
Thus the District Court’s order granting a directed verdict and entering judgment for the defendant Continental Can Corporation will be reversed. The case will be remanded for further proceedings in accordance with this opinion.