Cintrone v. Hertz Truck Leading/Concurrence Proctor

PROCTOR, J. (concurring).

I agree that the lessor of a new or used vehicle should be subject to strict liability for defects existing in the vehicle at the time the lessee acquires possession. I cannot, however, agree with that part of the majority opinion which states that the lessor will be liable for any defect which arises during the leasing period where such period is for an extended length of time.

I understand that there is a developing practice for corporations and individuals to lease new vehicles for a year or more, and themselves provide for maintenance. It would seem that in such a situation the lessor's liability should be no greater than that of the manufacturer of the vehicle -- liability for injuries caused by a defect which existed when the vehicle left the manufacturer's control. Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 182 (1964). The lessor's liability in this type of lease, which is so different from the one before us in the present case, should not be determined now.

The record here indicates that there was an agreement between the lessor and lessee that the lessor would be responsible for all maintenance and repairs. In short, the lessor assumed the obligation to keep the vehicle in a safe running condition. To that end the lessor regained control of the vehicle at the end of each day when it was "gassed up" at its garage. Apparently, the lessee's only obligation was to notify the lessor of known defects. In these circumstances, the situation is the same as if the vehicle were leased anew each day from the lessor. Thus I think a new warranty of fitness for use on the highways came into being at the beginning of each working day. I therefore disagree with that part of the dissenting opinion which separates the original lease from the servicing [NJ461]  agreement. To my mind they were integral components of a single agreement and inseparable.

There was evidence in the case (although its credibility is somewhat suspect) that the brakes were defective for several days prior to the accident, and that the plaintiff so notified the lessor on three occasions. From this and other evidence set out in the majority opinion the jury could have found that there was a defect in the brakes at the beginning of the working day on which the accident happened; and that the defect caused the accident resulting in plaintiff's injuries. Thus the warranty issue should have been submitted to the jury. I agree with the majority's discussion [A784]  of contributory negligence. I therefore concur in the result reached by the majority.