Smith v. Nick's Catering Service

• Decision Date: 25 February 1977
• Docket Number: No. 76-1821,76-1821
• Citation: 549 F.2d 1194
• Parties: Larry C. SMITH, Plaintiff-Appellant, v. NICK'S CATERING SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1194

549 F.2d 1194

Larry C. SMITH, Plaintiff-Appellant, v. NICK'S CATERING SERVICE, Defendant-Appellee.

No. 76-1821.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1977.

Decided Feb. 25, 1977.

Elmer C. Oberhellmann, St. Louis, Mo., for plaintiff-appellant.

George E. Lee and Doris J. Banta, St. Louis, Mo., for defendant-appellee.

Before HEANEY, ROSS and HENLEY, Circuit Judges.

PER CURIAM.

Larry C. Smith appeals from the district court's dismissal of his diversity complaint for failure to state a claim. We affirm the judgment of dismissal.

Defendant Nick's Catering Service is a food catering service engaged in the business of selling food and beverages on location to industrial workers and other purchasers. The company owns approximately 20 trucks, each of which it leases, together with a route, to a driver. The drivers buy their merchandise from Nick's at wholesale cost and resell it at retail prices to their customers. The leasing cost paid by each driver is computed as a percentage of sales. Nick's cleans, services and lubricates the trucks.

On or about February 8, 1971, Smith sustained personal injuries when his head struck a portion of one of Nick's trucks, which was parked outside Smith's place of employment in the City of St. Louis. Smith was in the process of purchasing coffee and other beverages at the time. The body of the truck had been manufactured by the Di Pinto Manufacturing Co.

On November 12, 1975, Smith commenced this diversity action against Nick's, alleging that the truck was in a defective and unreasonably dangerous condition, and that his injuries were the proximate result thereof. Smith sought $300,000 in damages. In an amended complaint, filed on July 30, 1976, Smith named Di Pinto as an additional defendant.

On motion of Nick's Catering Service, the district court, on September 7, 1976, dismissed the complaint as to Nick's for failure to state a claim. Construing the complaint as resting on a theory of strict liability in tort, the court held that under Restatement (Second) of Torts § 402A (1965), adopted by the Missouri Supreme Court in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 365 (1969), only a seller of a product is subject to strict liability, and that Nick's was not a seller of the product which caused Smith's injury. The court subsequently dismissed the action as to Di Pinto as well, on grounds that it was barred by the statute of limitations. This appeal followed.

On appeal Smith challenges only the dismissal as to Nick's. He contends that under Missouri law, which all parties agree is controlling, the doctrine of strict liability applies to commercial lessors as well as sellers, that Nick's was such a lessor, and that the court, therefore, erred in holding that he failed to state a claim under a strict liability theory.

Section 402A of the Restatement (Second) of Torts (1965) provides that only a seller of a product may be held strictly liable, and some jurisdictions have refused to apply the doctrine to parties other than sellers. See, e. g., Speyer, Inc. v. Humble Oil & Refining Co., 275 F.Supp. 861, 868 (W.D.Pa.1967), aff'd, 403 F.2d 766, 771 (3d Cir. 1968). Other jurisdictions, however, have extended strict liability to mass lessors who put products in the stream of commerce in a fashion not unlike a manufacturer or a retailer, and who are in a position to spread the loss as a cost of doing business. See, e. g., Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965). Still others have indicated that virtually any lessor who places a product in the market may be held strictly liable. See, e. g., Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 181, 466 P.2d 722, 725 (1970).

Of the three views set forth above, the prevailing one among jurisdictions which have considered the issue is that strict liability may be invoked against lessors, but only as to a mass lessor who can be likened to a manufacturer or retailer. Missouri has had occasion to consider the application of strict liability to lessors or bailors in two cases. In Katz v. Slade, 460 S.W.2d 608 (Mo.1970), the Missouri Supreme Court refused to extend...