Lechuga, Inc. v. Montgomery

JACOBSON, Judge

(concurring).

I agree with the majority of this court that a reversal of this case is required because of the failure of the plaintiff to sustain his burden of proof as to the applicability of the doctrine of strict liability to the defect present here. However, since our decision in this matter requires a new trial be granted, I feel the issue as to the applicability of this doctrine to lessors, as applied to this case, must be met in order to determine whether or not plaintiff ori the retrial and upon the presentation of proper evidence would be entitled to an instruction on this issue.

*37 The Arizona Supreme Court has specifically held that § 402A of the Restatement (Second) of Torts (1965) shall be followed in Arizona in applying the doctrine of strict liability. O. S. Stapley Co. v. Miller, supra. This section, insofar as applicable, provides as follows:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

“(a) the seller is engaged in the business of selling such a product * * *.” (Emphasis added.)

As can be seen, this section of the Restatement deals specifically with “sellers,” and makes no mention of lessors of personal property. Moreover, Wagner v. Coronet Hotel, 10 Ariz.App. 296 , 458 P.2d 390 (1969) held that:’

“The theory of strict liability in tort applies only to those who are engaged in the business of selling products for use or consumption, such as a manufacturer, wholesaler, retailer, or distributor, (cases cited).” (Emphasis in original.) 458 P.2d, at 394 .

However, disregarding the expressed designation in the Restatement, at least two jurisdictions 1 have extended the rule of strict liability to include lessors of personal property.

On the other hand, the Federal District Court of Pennsylvania, applying the law of Pennsylvania, in Speyer, Inc. v. Humble Oil & Refining Co., 275 F.Supp. 861 , off A, 403 F.2d 766 (3d Cir. 1968), has specifically rejected the application of the doctrine of strict liability to lessors of personal property.

In making a determination as to whether or not the doctrine should apply to lessors in Arizona, a foundational inquiry into the reasons underlying the development of this doctrine is aptly in order.

It is apparent from a reading of the Restatement, and the leading cases on this subject, that the doctrine of strict liability was evolved to place liability on the party primarily responsible for the injury occurring, that is, the manufacturer of the defective product. This, as Justice Traynor stated in his concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453 , 150 P.2d 436 (1944), is based on reasons of public policy:

“If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.” 150 P.2d, at 441 .

These public policy considerations have been variously enumerated as follows:

(1) The manufacturer can anticipate some hazards and guard against their recurrence, which the consumer cannot do. Restatement, supra, comment c.

(2) The cost of injury may be overwhelming to the person injured while the risk of injury can be insured by the manufacturer and be distributed among the public as a cost of doing business. Greenman v. Yuba Power Products, Inc. [ 59 Cal.2d 57 ], 27 Cal.Rptr. 697 , 377 P.2d 897 (1962).

(3) It is in the public interest to discourage the marketing of defective products. Escola v. Coca Cola Bottling Co. of Fresno, supra.

(4) It is in the public interest to place responsibility for injury upon the manufacturer who was responsible for its reaching the market. Green-man v. Yuba Power Products, Inc., supra.

(5) That this responsibility should also be placed upon the retailer and *38 wholesaler of the defective product in order that they may act as the conduit through which liability may flow to reach the manufacturer, where ultimate responsibility lies. Vandermark v. Ford Motor Co. [ 61 Cal.2d 256 ], 37 Cal.Rptr. 896 , 391 P.2d 168 (1964).

(6) That because of the complexity of present day manufacturing processes and their secretiveness, the ability to prove negligent conduct by the injured plaintiff is almost impossible. Escola v. Coca Cola Bottling Co. of Fresno, supra.

(7) That the consumer does not have the ability to investigate for himself the soundness of the product. San-tor v. A and M Karagheusian, Inc., 44 N.J. 52 , 207 A.2d 305 (1965).

(8) That this consumer’s vigilance has been lulled by advertising, marketing devices and trademarks. Concurring opinion, Lockwood, J., Nal-bandian v. Byron Jackson Pumps, Inc., 97 Ariz. 280 , 399 P.2d 681 (1965).

Inherent in these policy considerations is not the nature of the transaction by which .the consumer obtained possession of the defective product, but the character of the defect itself, that is, one occurring in the manufacturing process and the unavailability of an adequate remedy on behalf of the injured plaintiff.

For this reason I find no logical basis for differentiating between the liability to an injured consumer of a dealer who is in the business of selling an automobile which is in a defective condition because of the manufacture thereof, and a dealer who is in the business of leasing the same automobile. Obviously, the liability should be the same — strict liability in order to reach the ultimate culprit, the manufacturer. The distinction to be made is not in what capacity the dealer acts, that is, as seller or lessor, but in the nature of the defect itself, that is, was it the result of either design or manufacture?

My determination in this matter would appear to be contrary to the Supreme Court’s statement that the rule in Arizona is that set forth in the Restatement which refers only to “sellers.” However, my reading of the Arizona Supreme Court decisions on this subject leads me to the conclusion that the Arizona Supreme Court would not hesitate to hold that the term “seller” is a term designating a class (one in the business of placing products in the stream of commerce) rather than a designation of limitation.

Because of my analysis of the underlying policy considerations and my determination that the designation of the transaction insofar as the ultimate consumer is concerned is not controlling but that the nature of the defect of the product is, I am unable to agree with the reasoning of either the New Jersey or California courts. The cases previously cited in footnote 1 of this concurring opinion from these two jurisdictions would seem to elevate a lessor to the status of manufacturer without a determination of the underlying defect which caused plaintiff’s injuries. I am likewise unable to agree with the Pennsylvania case which categorically denied liability under the doctrine of strict liability because the defendant was not a “seller.”

As I view the problem, the nature of the defect is primarily a question of plaintiff’s proof. If plaintiff in this action could prove that defendant Lechuga was in the business of leasing trucks and that the truck on which plaintiff was injured initially came into the hands of defendant, that is, when it was first placed in the stream of commerce, without the necessary safety chain, I would have no difficulty in determining that a prima facie case for the application of the doctrine of strict liability had been proven. After such a prima facie showing, the burden then shifts to the defendant to show, if he is able, that the particular defect was not the result of manufacture. Greco v. Bucci-coni Engineering Co., 283 F.Supp. 978 (W.D.Pa.1967), affd, 407 F.2d 87 (3d Cir. 1969); 21 Stanford L.Rev. 1777 (1969).

*39 The defendant next contends that in any event the absence of the safety chain was not a “defective condition unreasonably dangerous.” The courts have had some difficulty in defining this term. After reading many definitions, I am of the opinion that the definition offered by the Restatement is the most logical: if the product reaches the ultimate consumer in a condition not contemplated by him and that condition renders that product unreasonably dangerous to him, a “defective condition” exists. Restatement, supra, comment g. While I express some concern that the absence of a chain to keep an engine cover from falling would render the use of that • engine cover “unreasonably dangerous,” this must be a question for the trier of facts looking at all the attendant circumstances.

In view of my conclusion on this subject, on a retrial of this matter, I would not preclude the plaintiff from offering proof as to the applicability of the doctrine of strict liability to the facts in this case, and if such proof was sufficient, instructing the jury on this issue.

. Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434 , 212 A.2d 769 (1965); McClaflin v. Bayshore Equipment Rental Co., 79 Cal.Rptr. 337 (Cal.App.1969) ; Price v. Shell Oil Co., 79 Cal.Rptr. 342 (Cal.App.1969).