Opinion
File No. 121141
The doctrine of strict tort liability is applicable in nonsale situations if other requirements are met. Consequently, a count sounding in strict liability against the defendant automobile repairman who had furnished the car involved in an accident to the defendant operator was not demurrable on the ground that the transaction was not a sale.
Memorandum filed February 23, 1972
Memorandum on demurrer by the defendant C. Kenneth Theroux to the third count of the complaint. Demurrer overruled.
Jacobs, Jacobs, Grudberg Clifford, of New Haven, for the plaintiffs.
Shiff Shiff, of New Haven, and James O'C. Shea, of New Haven, for the defendant Cooper.
Cotter, Cotter Sohon, of Bridgeport, for the defendant Theroux.
In September, 1968, the defendant Herman Cooper brought his automobile to the shop of the defendant C. Kenneth Theroux for repairs. Cooper was supplied with an automobile by Theroux for his use while his automobile was being repaired. A few days later, the automobile, operated by Cooper, was involved in a one-car accident. The plaintiffs were passengers in the car and suffered serious injuries, and the plaintiff administratrix' decedent, Julius Whitfield, died of the injuries suffered by him.
The third count of the complaint, to which the defendant Theroux demurs, is directed against the defendant Theroux and sounds in strict liability.
The thrust of the defendant Theroux's demurrer is that the plaintiffs have failed to allege sufficient facts to set forth a cause of action sounding in strict liability in that the transaction between Cooper and Theroux with regard to the automobile involved in the accident was not a sale and the doctrine of strict liability does not apply in nonsale situations.
Paragraph 1 of the third count of the complaint alleges that the defendant Theroux "rented or leased or bailed for consideration" an automobile owned by him to the defendant Cooper. Paragraph 2 alleges that the defendant Theroux "was in the business of renting or leasing or bailing said automobile for consideration and said automobile was expected to and did reach the defendant Herman Cooper, the plaintiff's decedent Julius C. Whitfield and the plaintiff Joseph Whitfield without substantial change in the condition in which it was rented or leased or bailed for consideration."
The demurrer admits all well-pleaded facts. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them. If facts provable under the allegations would support a cause of action, the demurrer must fail. The court will not, in passing on the demurrer, consider other grounds than those specified. Cyr v. Brookfield, 153 Conn. 261, 263.
In support of his position the defendant Theroux cites Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, as restricting the doctrine of strict liability in this state to cases involving a sale. He also cites the Restatement (Second), 2 Torts § 402 A, comment i. It is true that in Rossignol the court was addressing itself to a case involving a sale. But that is not to say that the Supreme Court in that case was saying that the doctrine of strict liability applied only in cases involving a sale. The reasoning which prompted the adoption of § 402 A applies with equal force whether the basic arrangement was a sale, a rental, a lease or bailment. Assuming that the other requirements as set forth in § 402 A and as recited in Rossignol can be met, this court sees no bar to the application of the doctrine of strict liability in nonsale cases. This was recognized in Mitchell v. Miller, 26 Conn. Sup. 142, 147, citing Simpson v. Powered Products of Mich., Inc., 24 Conn. Sup. 409; see Price v. Shell Oil Co., 2 Cal.3d 245; Cintrone v. Hertz Truck Leasing Rental Service, 45 N.J. 434.
Section 402A, entitled "Special Liability of Seller of Product for Physical Harm to User or Consumer," states: "(1) 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, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."