Mace v. Ryder Truck Rental, Inc.

Koreman, P. J. (dissenting).

I dissent. The majority concludes that although there was sufficient evidence from which the jury could find that defendant had failed to properly repair the power steering unit causing the unit to become inoperable, the defective condition was not, as a matter of law, the proximate cause of plaintiff’s injuries.

In Rivera v City of New York (11 NY2d 856), upon which the majority relies, the defendant created a defective plumbing condition which caused a bathtub to be continuously full of hot water, and a child wearing wet boots stood on the edge of the bathtub, slipped, and fell into the water. The court explained (p 857): "The hot water created the specific injuries for which damages were sought and determined the gravity of the consequences resulting from the accident, but it did not cause the intervening act [the slipping of a wet boot while the child balanced on the edge of the bathtub] which was not foreseeable”. The case at bar is readily distinguishable.

It is not disputed that as a result of the defective condition created by defendant, the use of extraordinary physical exertion was required to steer the truck. The majority reasons, however, that plaintiff’s decision to continue to drive the truck with knowledge of the defect was an intervening cause for which the defendant cannot be liable. "It is well settled that foreseeable intervening cause will not relieve a wrongdoer of liability” (Bohn v Triumph Corp., 33 NY2d 151, 159) and in my view, the foreseeability of plaintiff’s conduct and, therefore, the question of proximate cause was for the jury (Luce v Hartman, 6 NY2d 786). Moreover, it appears that in its discussion of plaintiffs conduct in continuing to drive the truck with knowledge of the defective condition, the majority has confused intervening act with contributory negligence. Thus, in Guglielmini v Conigliaro (35 AD2d 524, aifd 29 NY2d 930), where plaintiff had first-hand knowledge of a defective condition, but continued to drive the vehicle for two weeks after being told by defendant that needed repairs could not be done immediately, we found plaintiff contributorily negligent as a matter of law with no mention of proximate cause or intervening act.

The majority recites certain circumstances where exertion of the physical force required to manually steer the truck would be foreseeable, and, therefore, it cannot be said that, as a matter of law, plaintiffs use of such physical force was outside the scope of risk created by the defective condition. The question is not one of proximate cause, but rather it is whether plaintiff was contributorily negligent in completing certain maneuvers after encountering the steering problem and in driving the truck several miles to defendant’s garage after again encountering the problem despite defendant’s attempt to make repairs. This question was for the jury and was decided in plaintiffs favor.

The judgments should be affirmed.