The doctrine of strict liability in tort is applied to commercial
lessors of products, and to leased transactions which are
commercial in nature. Wright v. Newman, 735 F.2d 1073 (8th Cir.
1984) [applying Missouri law]; Ghionis v. Deer Valley Resort Co.,
839 F.Supp. 789 (Utah 1993); Bidar v. AMFAC, Inc., 66 Hawaii 547,
669 P.2d 154 (1983); Bachner v. Pearson, 479 P.2d 319 (Alaska
1970); Lechuga, Inc. v. Montgomery, 12 Ariz. App. 32, 476 P.2d
256 (1970); Westlye v. Look Sports, 17 Cal. App. 4th 1715, 22
Cal. Rptr. 2d 781 (review denied) (1993); Baird v. Power Rental
Equipment, Inc., 35 Colo. App. 299, 533 P.2d 941 (1975), affd 191
Colo. 319, 552 P.2d 494 (1976); Golt by Golt v. Sports Complex,
644 A.2d 989, app. den (Del 1994); Samuel Friedland Family
Enters. v. Amoroso, 630 So.2d 1067 (Fla. 1994); Zanzig v. H.P.M.
Corp., 134 Ill. App. 3d 617, 89 Ill Dec 461, 480 NE2d 1204
(1985); Black v. Gorman-Rupp, 655 So.2d 717 (1973); Gabbard v.
Stephenson's Orchard, Inc., 565 SW2d 753 (Mo. 1978); Hawkins
Constr. Co. v. Matthews Co., 190 Neb. 546, 209 NW2d 643 (1973)
(ovrld in part on other grounds by National Crane Corp. v. Ohio
Steel Tube Co., 213 Neb. 782, 332 NW2d 39 (1983)); Ettin v. Ava
Truck Leasing, Inc., 53 NJ 463, 251 A.2d 278 (1969); Ortiz v. Gas
Co. (App), 97 NM 81, 636 P.2d 900 (1981); Winckel v. Atlantic
Rents & Sales, 159 App.Div. 2d 124, 557 NYS.2d 951 (1990), later
proceeding 195 App.Div. 2d 599, 600 NYS.2d 949 (1993); Waters v.
Patent Scaffold Co., 75 App.Div. 2d 744, 427 NYS.2d 436 (1980),
app. dismd 53 NY.2d 704 (1975); Miles v. General Tire & Rubber
Co., 10 Ohio App. 3d 186, 460 NE.2d 1377 (1983); Gonser v.
Decker, 814 P.2d 1056 (Okla. 1991); Fulbright v. Klamath Gas Co.,
271 Or. 449, 553 P.2d 316 (1975); Francioni v. Gibsonia Truck
Corp., 472 Pa. 362, 372 A.2d 736 (1977); Brimbau v. Ausdale
Equip. Rental Corp., 440 A.2d 1292 (R.I. 1982); Peterson v.
Safway Steel Scaffolds Co., 400 NW.2d 909 (S.D. 1987); O'Neal v.
Sherck Equipment Co., 751 SW.2d 559 (Texas 1988); Kemp v. Miller,
154 Wis.2d 538, 453 NW.2d 872 (1990).
A commercial lessor or bailor is subject to strict liability
because his or her position in the overall producing and
marketing enterprise is no different than that of a seller. For
example, the commercial lessor typically is within the original
chain of distribution, reaps a profit by placing a product in the
stream of commerce, and, when the product is in his or her hands,
is as capable as a seller of preventing a defective product from
proceeding through the stream of commerce. George v. Tonjes, 414
F.Supp. 1199 (W.D. Wisc. 1976); Whitfield v. Cooper, 30
Conn.Supp. 47, 298 A.2d 50 (1972); Martin v. Ryder Truck Rental,
Inc., 353 A.2d 581 (Del. 1976); Crowe v. Public Bldg. Com., 74
Ill.2d 10, 23 Ill. Dec. 80, 383 NE.2d 951 (1978); Gabbard v.
Stephenson's Orchard, Inc., 565 SW.2d 753 (Mo. 1978); Dewberry v.
La Follette, 598 P.2d 241 (Okla. 1979); Francioni v. Gibsonia
Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Brimbau v. Ausdale
Equip. Rental Corp., 440 A.2d 1292 (R.I. 1982).
Extension of strict liability to lessors and bailors has been
premised on the following factors: (1) in some instances the
lessor, like the seller, may be the only member of the marketing
chain available to the injured plaintiff for redress (Dewberry v.
La Follette, 598 P.2d 241 (Okla. 1979); Francioni v. Gibsonia
Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977)); (2) as in the
case of the seller, imposition of strict liability upon the
lessor serves as an incentive to safety [See Dewberry, supra, and
Francioni, supra]; (3) the lessor will be in a better position
than the consumer to prevent the circulation of defective
products [See Dewberry, supra, and Francioni, supra]; (4) like
sellers and manufacturers, commercial lessors are in a position
to control their risk through the adoption of inspection and
maintenance procedures and to pass on to the lessee the costs of
the protective measures and of insurance. George v. Tonjes, 414
F.Supp. 1199 (W.D. Wisc. 1976); Martin v. Ryder Truck Rental,
Inc., 353 A.2d 581 (Del. 1976); Miles v. General Tire & Rubber
Co., 10 Ohio App. 3d 186, 460 NE.2d 1377 (1983); Dewberry v. La
Follette, 598 P.2d 241 (Okla. 1979); Francioni v. Gibsonia Truck
Corp., 472 Pa. 362, 372 A.2d 736 (1977).
Arguably, the doctrine of strict liability should apply to
lessors with even greater force than to manufacturers and
sellers, since lessees of goods might have less of an opportunity
to inspect a leased item than would a purchaser, and would rely
to a greater extent upon implied assurance by the lessor that the
product is safe for its intended purpose (George v. Tonjes, 414
F.Supp. 1199 (W.D. Wisc. 1976); Brimbau v. Ausdale Equip. Rental
Corp., 440 A.2d 1292 (R.I. 1982)); and since lessors put a given
product to a more sustained use than do retailers, introducing
and reintroducing the product into the consumer market with each
new lease, the same product may also expose a greater number of
persons to potential injury. Cintrone v. Hertz Truck Leasing &
Rental Service, 45 NJ 434, 212 A.2d 769 (1965); George v.
Tonjes, 414 F.Supp. 1199 (W.D. Wisc. 1976).
A number of cases decided by the Hawaii Supreme Court make it
clear that a lessor can be liable in products liability. First,
in the case of Stender v. Vincent, 92 Haw. 355, 992 P.2d 50
(2000), the Supreme Court reiterated its position first adopted
in Stewart v. Budget Rent-A-Car Corp in 1970. As the Court
stated:
"In Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d
240 (1970), this court first articulated the rule of strict
products liability, to the effect that one who sells or
leases a defective product which is dangerous to the user or
consumer or to his property is subject to liability for
physical harm caused by the defective product to the
ultimate user or consumer, or to his property, if (a) the
seller or lessor is engaged in the business of selling or
leasing such product, and (b) the product is expected to and
does reach the user or consumer without substantial change
in its condition after it is sold or leased." [emphasis
added] 92 Haw. at 371, 992 P.2d at 60.
In Leong v. Sears Roebuck and Co., 89 Haw. 204, 970 P.2d, 972
(1998), the Hawaii Supreme Court went into further depth on
claims in strict products liability against lessors of defective
products. That Court stated:
"In Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d
240 (1970), this court first integrated strict products
liability into Hawai'i law, observing that strict liability
in tort is a sound legal basis for recovery in products
liability cases. The leading arguments for the adoption of a
rule of strict products liability have been that the public
interest in human life and safety requires the maximum
possible protection that the law can muster against
dangerous defects in products; that by placing the goods on
the market the maker and those in the chain of distribution
represent to the public that the products are suitable and
safe for use; and that the burden of accidental injuries
caused by defective chattels should be placed upon those in
the chain of distribution as a cost of doing business and as
an incentive to guard against such defects.
"Therefore, we adopt the rule that one who sells or leases a
defective product which is dangerous to the user or consumer
or to his property is subject to liability for physical harm
caused by the defective product to the ultimate user or
consumer, or to his property, if (a) the seller or lessor is
engaged in the business of selling or leasing such product,
and (b) the product is expected to and does reach the user
or consumer without substantial change in its condition
after it is sold or leased. This is essentially the rule
adopted in the Second Restatement of Torts, Section 402A.
Id. at 74-75, 470 P.2d at 243 (footnotes omitted)."
[emphasis added] 89 Haw. at 205, 970 P.2d at 973
The Hawaii Supreme Court had also taken this same position in the
case of Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566
(1989). That Court stated:
"In Ontai v. Straub Clinic and Hospital, Inc., 66 Haw. 237,
241, 659 P.2d 734, 739 (1983), we stated the following rule
for strict product liability:
'The rule, as thus adopted for this jurisdiction, provides
that where a seller or lessor, who is engaged in the
business of selling or leasing a product, sells or leases a
defective product which is dangerous to the user or
consumer, and injury results from its use or consumption,
the seller or lessor will be held strictly liable in tort
for the injury.'" [emphasis added] 71 Haw. at 23-24, 780
P.2d at 578.
The case of Armstrong v. Cione, 69 Haw. 176, 738 P.2d 79 (1987)
is completely consistent with the foregoing analysis. The
Armstrong Court stated as follows:
"Petitioner argues Boudreau v. General Electric Co., 2
Haw.App. 10, 17, 625 P.2d 384, 389-90 (1981), permits the
tenant to sue the landlord for defective products within the
home. Boudreau is in opposite to the present factual
circumstances in that the landlord installed the new
washer/dryer which exploded and injured plaintiff. The
appliance was separate from the structure itself, [FN6] and
installed by the landlord. In the instant case, the shower
and its door were an integral part of the structure of the
apartment building and there was no evidence adduced that
Respondent installed the shower during or after renovation.
See Livingston v. Begay, 98 N.M. at 716, 652 P.2d at 738.
See also George Washington University v. Weintraub, 458 A.2d
43, 49 n. 9 (D.C.App.1983).
"FN6 Cf. Fakhoury v. Magner, 25 Cal.App.3d 58, 63, 101
Cal.Rptr. 473, 476 (1972) ('[w]e conclude that ... the
doctrine of strict liability does apply to the landlord, not
as lessor of real property, but as lessor of the
furniture.')." 69 Haw. at 186, 738 P.2d at 85.
|