McClaflin v. Bayshore Equipment Rental Co.

• Decision Date: 30 June 1969
• Citation: 274 Cal.App.2d 446,79 Cal.Rptr. 337
• Parties: Barbara McCLAFLIN, individually; Douglas McClaflin, Sheldon McClaflin and Leslie Ann McClaflin, by Barbara McClaflin, their Guardian ad Litem, Plaintiffs and Appellants, v. BAYSHORE EQUIPMENT RENTAL COMPANY, a partnership; Harold Roundtree and Morris Galloway, individually and doing business as Bayshore Equipment Rental, Defendants and Respondents. Civ. 24313.
• Court: California Court of Appeals Court of Appeals

Page 337

79 Cal.Rptr. 337

274 Cal.App.2d 446

Barbara McCLAFLIN, individually; Douglas McClaflin, Sheldon McClaflin and Leslie Ann McClaflin, by Barbara McClaflin, their Guardian ad Litem, Plaintiffs and Appellants, v. BAYSHORE EQUIPMENT RENTAL COMPANY, a partnership; Harold Roundtree and Morris Galloway, individually and doing business as Bayshore Equipment Rental, Defendants and Respondents.

Civ. 24313.

Court of Appeal, First District, Division 4, California.

June 30, 1969.

Gudmundson, Siggins, Stone & Goff, San Francisco, for appellants.

Clifford Burnhill, Burnhill, Rode, Moffitt & Moore, Oakland, John J. Quill, San Carlos, for respondents, Cyril Viadro, San Francisco, of counsel.

RATTIGAN, Associate Justice.

Neil McClaflin died from injuries received in an accident involving a stepladder he had leased from Bayshore Equipment Rental Company, a partnership. His heirs brought this wrongful death action against Bayshore and the partners therein. The jury returned a defense verdict. Appealing from the judgment, plaintiffs contend that the trial court erred in declining to instruct the jury on 'strict liability.' We agree: we reverse the judgment.

The evidence shows the following facts, none of which are in substantial dispute: The decedent was self-employed as an installer of custom draperies. The accident occurred while he was working on a job in a room of the Hillsdale Executive Building in San Mateo. Before commencing work on the afternoon of the accident, he personally rented a folding wooden stepladder from Bayshore at the latter's business premises nearby, drove it to the Hillsdale Executive Building, and set it up in the room where he was to install rods and draperies. He mounted the ladder in order to drill holes in the ceiling of the room. Shortly after he had reached a standing position on a step near the ladder's top, the ladder and he fell to the floor. , he received head injuries, from which he died in Mills Memorial Hospital two days later.

Timothy Ward, an employee of the decedent, had accompanied him during the rental transaction and to the job site. Ward was present when the accident occurred, but he did not see it because he was 'bending over' while working nearby. Hearing a crash, Ward turned and saw the decedent and the ladder lying on the floor. He realized that the decedent was unconscious, and ran for help. Several persons, including a police officer, came to the scene. After the accident Ward noticed some vertical 'cracks,' about three feet in length, in one of the step-bearing legs of the ladder. ¹ The jury saw these cracks the stepladder was received in evidence at the trial.

Plaintiffs' complaint set forth causes of action for negligence and breach of warranty against Bayshore and its partners. Defendants pleaded, among other things, contributory negligence and assumption of risk by the decedent. The principal controversy at the trial pertained to the cracks in the stepladder. Plaintiffs undertook to prove that the ladder was cracked when the decedent rented it, and that the defect caused it to collapse and him to fall. Defendants offered evidence that the decedent caused the ladder to fall by the manner in which he stood on it and worked from it, and that the leg was cracked in the fall. Four experts--one for plaintiffs and three for defendants--testified on this subject.

Photographs and other evidence showed that Bayshore conducted its business in a large warehouse-type building which was open to the public durng business hours. The building, which occupied a street corner, was conspicuously signed with legends advertising the business ('Bayshore Equipment Rental,' 'Tools, Equipment Rented,' and so on); at least two exterior signs advertised 'Ladders.' Bayshore rented a varied line of ladders, tools and powered equipment to customers who called for the rented items and took them from the premises. The business was ordinarily manned by four employees, who served as many as 150 rental customers per day in peak times. The rented ladders were both new and used; one of Bayshore's employees testified that the stepladder rented to the decedent was 'one of our older ladders.'

Plaintiffs proposed a 'strict liability' instruction, patterned after BAJI No. 218--A (new) (BAJI (1967 pocket part) p. 111) but directed to strict liability in Bayshore as the Lessor of the stepladder. ² The trial court refused to give it. We hold that the omission was prejudicial error.

It is now well established that a person is strictly liable in tort when an article he places upon the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62--63, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 260--263, 37 Cal.Rptr. 896, 391 P.2d 168; Alvarez v. Felker Mfg. Co. (1964) 230 Cal.App.2d 987, 994--996, 41 Cal.Rptr. 514; Prosser, Strict Liability to the Consumer in California (1966) 18 Hastings L.J. 9.) Greenman applied the rule against a manufacturer, Vandermark and Alvarez against retailers. No California decision has yet applied it against the lessor of a chattel. We do so here.

Defendants' argument to the contrary is based upon Civil Code section 1955 (relative to the obligations of a lessor of personal property) ³ and certain decisions construing it. (E.g., McNeal v. Greenberg (1953) 40 Cal.2d 740, 742, 255 P.2d 810; Tierstein v. Licht (1959) 174 Cal.App.2d 835, 841, 345 P.2d 341.) Defendants urge that under these decisions a lessor or bailor of personal property in California can be held liable for negligence only; this means, they contend, that such lessor--'as distinguished from a manufacturer distributor or retailer'--cannot be held strictly liable in tort under the Greenman rule.

Section 1955, however, does not state this conclusion: the Legislature in enacting it defined certain duties of a lessor of chattels, but did not purport to limit his liability to breaches thereof. Moreover, the Pre-Greenman cases construing the statute established that the lessor's liability to his customer rested in contract: it was for his breach of An implied warranty, arising under section 1955 or under the common law of bailments, that he had exercised reasonable care to ascertain that the leased chattel was safe and suitable for the purpose for which it was hired. (See, e.g., McNeal v. Greenberg, Supra, 40 Cal.2d 740 at p. 742, 255 P.2d 810; Tierstein v. Licht, Supra, 174 Cal.App.2d 835 at p. 841, 345 P.2d 341.)

But it is the element of Warranty that the Greenman rule wholly abolished as a foundation of liability in the purveyor of a defective chattel (Prosser, op. cit. Supra, 18 Hastings L.J. 9, 20 ('It is warranty that has gone overboard, and with it all idea that the plaintiff's recovery is founded on a contract, * * *')); and this is demonstrated by the more recent, but corollary rule, that a plaintiff can enforce strict liability in the absence of any contractual relation or privity of contract with the purveyor. (Elmore v. American Motors Corp. (1969) 70 A.C. 615, 623, 75 Cal.Rptr. 652, 451 P.2d 84; Barth v. B. F. Goodrich Tire Co. (1968) 265 A.C.A. 253, 272, 71 Cal.Rptr. 306.) The cases which held that a bailor's liability for his customer's injuries was based upon contract therefore do not protect him from strict liability under the Greenman rule, which reaches him in tort.

The Greenman rule, moreover, extends its protection to the injured party without reference to the role he played, or even if he played none, in the transaction wherein the defective chattel was acquired from its purveyor. He can be retail buyer (Greenman v. Yuba Power Products, Inc., Supra, 59 Cal.2d 57, 59, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049), a member of the buyer's family (Vandermark v. Ford Motor Co., Supra, 61 Cal.2d 256, 258, 37 Cal.Rptr. 896, 391 P.2d 168), the buyer's employee (Casetta v. United States Rubber Co. (1968) 260 Cal.App.2d 792, 795, 67 Cal.Rptr. 645), or a 'mere bystander' totally unconnected with the chattel's purveyor except as an ultimate victim. (Elmore v. American Motors Corp., Supra, 70 A.C. 615, 618, 623--624, 75 Cal.Rptr. 652, 451 P.2d 84.) Defendants' argument would exclude only a lessee-bailee from the protected class. The exclusion, in our view, would ignore the marketplace realities upon which he Greenman rule rests.

Lessors of personal property, like the manufacturers or retailers thereof, 'are engaged in the business of distributing goods to the public. They are an integral part of the overall * * * marketing enterprise that should bear the cost of injuries resulting from defective products.' (Vandermark v. Ford Motor Co., Supra, 61 Cal.2d 256 at p. 262, 37 Cal.Rptr. 896 at p. 899, 391 P.2d 168 at p. 171.) In some cases the lessor 'may be the only member of that enterprise reasonably available to the injured plaintiff' (id.), and the imposition of strict liability upon him serves, as in the case of the retailer, as an incentive to safety. (See id.) This will afford maximum protection to the injured plaintiff while working no injustice upon the lessor: the latter can recover the cost of the protection by charging for it in his business. (See id., at pp. 262--263, 37 Cal.Rptr. 896, 391 P.2d 168.) In sum, the rationale of Greenman and Vandermark applies as logically and desirably to a lessor of chattels as to the manufacturers or retailers thereof. (See Lascher, Strict Liability In Tort For Defective Products: The Road To And Past Vandermark (1965) 38 So.Cal.L.Rev. 30, 57 ('B').)

Other factors supporting the application of strict liability in the present case are shown in Cintrone v. Hertz Truck Leasing, Etc. (1965) 45 N.J. 434, 212 A.2d 769. The Cintrone court held a 'U-Drive-It' lessor of trucks strictly liable because its business put 'motor vehicles in the stream of commerce in a...