Peterson v. Lou Bachrodt Chevrolet Co.

MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. The rationale underlying the application of strict liability to a manufacturer is that losses should be borne by those “who have created the risk and reaped the profit by placing the product in the stream of commerce.” (Suvada v. White Motor Co., 32 Ill.2d 612, 619.) In Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, strict liability was made applicable to a wholesaler and retailer for the reason that “these considerations apply with equal compulsion to all elements in the distribution system.” (42 Ill.2d 339, 344.) These same considerations require application of strict liability principles to the business of selling used automobiles.

It is axiomatic that a used car dealer owes a duty to make a reasonable inspection of an automobile prior to selling it. Just as liability on the part of the manufacturer and the other “elements in the distribution system” can flow from a defect, without proof of negligence, a defect discoverable upon reasonable inspection should invoke strict liability on the part of a used car dealer, without proof of negligence in making the inspection. The complaint here alleged that the automobile, when it left defendant’s control, was defective and not reasonably safe for driving and operation in that:

“(a.) A spring or springs in the left front wheel braking system was missing at the time of its sale;

(b.) One of the left rear brake shoes was completely worn out at the time of the sale;

(c.) A part of the cylinder braking system in the left rear wheel was missing at the time of the sale.”

These defects would have been discovered upon reasonable inspection of the vehicle.

The majority cite Realmuto v. Straub Motors, Inc. (1974), 65 N.J. 336, 322 A.2d 440, and by implication attempt to distinguish it on the ground that there is no allegation “that the defects were created by the used car dealer.” I submit that there is no basis for distinguishing a defect resulting from repairs made by a used car dealer and a defect which exists by reason of his failure to make a reasonable inspection, and that both should be the basis for imposing strict liability.

In Galluccio v. Hertz Corp., 1 Ill. App. 3d 272, appeal denied, 49 Ill.2d 575, the appellate court held strict liability applicable to the lessor of a motor vehicle. No reason presents itself for not applying the principle to a used car dealer who places in the stream of commerce a vehicle rendered unreasonably dangerous by reason of a defect discoverable upon reasonable inspection.

I am aware of the argument made by defendant and amici curiae that many vehicles are sold “as is” and that the cost of repairs in some instances might exceed the value of the vehicle. These pleadings present no such issues, and assuming, arguendo, that in some future case they will arise, there is precedent for weighing the cost of remedying the dangerous condition against the nature and extent of the risk which it creates. Kahn v. James Burton Co., 5 Ill.2d 614.

■ I would affirm the judgment of the appellate court.