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Ettin v. Ava Truck Leasing Inc.

Decided: March 17, 1969.

DONALD ETTIN, PLAINTIFF-RESPONDENT,
v.
AVA TRUCK LEASING, INC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT. DONALD ETTIN, PLAINTIFF-RESPONDENT, V. SWEETS CO. OF AMERICA, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The jury returned a verdict for the plaintiff against both defendants Ava Truck Leasing, Inc. and Sweets Co. of America, Inc. The trial court entered judgment in the plaintiff's favor against Ava but granted Sweets' motion that judgment be entered in its favor notwithstanding the verdict. The Appellate Division affirmed (100 N.J. Super. 515 (1968)) and thereafter we certified. 52 N.J. 489 (1968).

The plaintiff was a route salesman employed by Feldman Food Products. His employer had leased a truck from Ava and after the plaintiff had loaded it with merchandise he proceeded with deliveries along his route. He made many stops for deliveries without experiencing any difficulties with the foot brake. When he came over the crest of a viaduct on Park Avenue in Hoboken he saw a tractor-trailer parked across both of the two southbound lanes. He was traveling south at about 25 miles per hour. The day was clear and dry and the tractor-trailer could readily be seen from the crest of the viaduct which was about 400 to 500 yards away. The roadway from the bottom of the viaduct to the tractor-trailer was about 300 to 400 yards and was flat. When he was halfway down the hill, according to his testimony, he applied his foot brake but the pedal "went right to the floor" and there was "no pedal at all". He pumped

the foot brake, tried to shift gears, and applied the hand brake but the truck was not slowed.

The plaintiff might have avoided the tractor-trailer by going into the northbound lanes but both of those lanes were heavily trafficked. If he stayed on the left or fast southbound lane he would have hit the rear of the last of several cars which had stopped because of the tractor-trailer. This he said would have caused a "chain reaction" and he therefore chose to pull to the right into the slow lane. He crashed into the center of the side of the trailer where a police officer found him with his foot on the brake pedal "right against the floor board". A police officer testified that he did not observe any skid marks though he acknowledged that he did not look for them. Another witness testified that he saw something wet on the curb and that he recognized it as brake fluid coming from the "right rear wheel" of the truck. An expert witness for the plaintiff gave his opinion that the accident resulted from the "loss of brake fluid due to a leak" which had occurred at the right rear wheel and which prevented "the application of brake pressure to any of the other wheels."

In due course the plaintiff filed an action against Ava and the owner, the lessee and the operator of the tractor-trailer. In this action the claim against the owner of the tractor-trailer was dismissed by the trial court and thereafter the jury returned a verdict of $9,000 in the plaintiff's favor against Ava and verdicts of no cause of action in favor of the lessee and the operator of the tractor-trailer. On Ava's application, the trial court granted a new trial. Before the first trial of the plaintiff's action against Ava the plaintiff had filed a separate complaint against Sweets, alleging that Sweets owned and managed the building where the tractor-trailer was parked, that it had "directed and participated" in the improper parking, and that as a result of its negligence the plaintiff had suffered injuries for which he sought damages against Sweets. The plaintiff's action against Sweets was consolidated for trial with the retrial of the plaintiff's

action against Ava. After full trial in the consolidated actions the jury returned a verdict of $17,000 in plaintiff's favor against Ava and Sweets. Both defendants moved for judgment notwithstanding the verdict, or in the alternative for new trial, and Ava moved to amend its answer to assert a cross-claim for contribution against Sweets. The trial court denied Ava's motions but granted Sweets' motion for judgment notwithstanding the verdict.

Ava appealed to the Appellate Division, not only from the plaintiff's judgment against it, but also from the judgment in favor of Sweets and the denial of its motion for leave to assert a cross-claim against Sweets. Sweets appealed "in order to protect its rights and interests" in the event of a reversal of the judgment entered in its favor. See 100 N.J. Super., at 521. The plaintiff cross-appealed from the judgment entered in favor of Sweets. After the Appellate Division affirmed the Law Division's judgment in toto, Ava petitioned for certification and Sweets cross-petitioned, again as a protective measure; our grant was of both petitions. 52 N.J. 489 (1968).

We shall deal first with Ava's attack on the judgment obtained against it by the plaintiff. Ava's brief contains two pertinent points, the first of which asserts that the trial court erred in striking "contributory negligence" as a defense. In response the plaintiff asserts (1) that since its action against Ava was grounded not on negligence but on breach of warranty or strict liability in tort (Cintrone v. Hertz Truck Leasing, etc., 45 N.J. 434 (1965)), contributory negligence was no defense as a matter of law, and (2) that in any event the facts themselves presented no issue of contributory negligence for submission to the jury. As to its first assertion, Cintrone, supra, and Maiorino v. Weco Products Co., 45 N.J. 570 (1965) are dispositive. See also Dallison v. Sears, Roebuck and Co., 313 F.2d 343, 346-347 (10 th Cir. 1962); Dippel v. Sciano, 37 Wis. 2 d 443, 155 N.W. 2 d 55, 63 (1967); O.S. Stapley Company v. Miller, 6 Ariz. App. 122, 430 P. 2 d 701, 708-709 (Ct. App. 1967);

People ex rel. General Motors Corp. v. Bua, 37 Ill. 2 d 180, 226 N.E. 2 d 6, 16 (1967); Pepsi Cola Bottling Co. v. Superior Burner Serv. Co., Alaska, 427 P. 2 d 833, 842-843 (1967); cf. Prosser, Torts 656-657 (3 d ed. 1964); 2 Frumer and Friedman, Products Liability §§ 16.01[3], 16A[5][f] (1968).

In Cintrone the plaintiff was in a truck leased from Hertz when the brake allegedly failed with resulting injury to the plaintiff. He filed a complaint which contained a count grounded on breach of warranty or strict liability. The trial court submitted the issue of contributory negligence to the jury which returned a verdict in Hertz's favor. On appeal, the plaintiff contended that contributory negligence was not available as a defense despite the fact that there was evidence from which a jury could fairly find that the plaintiff knew the brakes were defective for several days before the injury and nevertheless continued to drive and ride in the truck without making any report of the defect to Hertz. His contention was rejected in an opinion by Justice Francis which referred to the differing expressions in the cases elsewhere on the issue of whether the "plaintiff's negligence in using a warranted but defective article creates a bar to recovery" and to Prosser's suggestion that the differences were largely semantic in nature. 45 N.J., at 458. See Prosser, "The Fall of the Citadel (Strict Liability to the Consumer)," 50 Minn. L. Rev. 791, 838-840 (1966).

In Maiorino the plaintiff suffered a lacerated left wrist while undertaking to open a glass container in which a new toothbrush was packaged. He sued the maker of the glass container along with the retailer from whom the toothbrush was purchased. There was evidence that the plaintiff had sought to open the container in an unusual and careless manner and the question presented was whether the trial court had acted properly in submitting to the jury the issue of contributory negligence as a defense to the plaintiff's claim grounded on strict liability in tort. We held that it had, citing Cintrone (45 N.J., at 457-459) and saying:

Simply stated, we are of the view that where a plaintiff acts or fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his bands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover. In short, in our judgment the well known principle of contributory negligence in its broad sense is sufficiently comprehensive to encompass all the variant notions expressed in the cited cases as a basis for refusing plaintiff a recovery when his own lack of reasonable care joined or concurred with the defect in the defendant's product as a proximate cause of the mishap and his injury. A manufacturer or seller is entitled to expect a normal use of his product. The reach of the doctrine of strict liability in tort in favor of the consumer should not be extended so as to negate that expectation. 45 N.J. at 574.

See Caputzal v. The Lindsay Co., 48 N.J. 69, 76 (1966).

The plaintiff urges that Cintrone was concerned only with assumption of risk and Maiorino only with misuse of property and he suggests, citing comment n to § 402 A of the Restatement (Second) Torts (1965), that any bar to the plaintiff's recovery should be confined to those situations and terms, thereby avoiding the asymmetrical importation of contributory negligence terminology into an action not grounded on negligence. But that would involve the reintroduction of confusing terms and classifications which we have elsewhere sought to obviate (McGrath v. American Cyanamid Co., 41 N.J. 272, 276 (1963)) and though we consider it hardly necessary, the term "contributory fault" could, if so desired, readily be substituted for the term "contributory negligence". See Prosser, supra, 50 Minn. L. Rev., at 838; Levine, "Buyer's Conduct as Affecting the Extent of Manufacturer's Liability in Warranty," 52 Minn. L. Rev. 627, 653 (1968).

Comment n, supra, sets forth that "contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence." Restatement, supra, § 402 A, at 356. As well illustrated here, a plaintiff who uses a leased truck which is impliedly warranted

to be in serviceable condition, owes no duty to the lessor to inspect or guard in advance against the possibility of a defect; his failure to do so does not constitute negligence or afford a defense to the supplier of the defective truck. The comment additionally sets forth, without more, that if the user "discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery." That of course finds direct support in Cintrone where it could be concluded from the evidence that the injured truck driver "with knowledge of the danger presented by the defective brakes failed to take the care for ...


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