specially concurring:
Although I agree with the reasoning and holding of my colleague, Justice McGillicuddy, I regard Arrow’s role as something more than that of a former owner and a former lessor, and I believe that Arrow, in selling the tower and assigning the lease, actively contributed to the continuation of the lease.
Count III of the complaint alleges that Arrow designed, manufactured and assembled a defective tower which it then leased to Sollitt. Nothing in the record rebuts this allegation. While the evidence at trial may show that Arrow did not manufacture or assemble the tower in question, Arrow should be regarded as the assembler or manufacturer, so far as consideration of defendant’s motion to dismiss is concerned. Although Arrow did not regularly sell towers, it did lease them on a regular basis. There is no significant difference between a manufacturer who puts his product into commerce by a sale and one who does it by a lease. Thus, if Arrow assembled or participated in the assembly of a defective tower which it then leased, it should be held to the same product liability responsibility it would have if it were in the business of assembling towers and selling them.
Even if Arrow was not an assembler of the tower, holding it accountable as the lessor of a defective product is consistent with the doctrine of strict product liability. By its lease with Sollitt, Arrow introduced the allegedly defective tower into the stream of commerce. Under the provisions of that lease, Arrow had the privilege of terminating the lease when it sold the tower to Southeastern. Instead of exercising that privilege to opt out of the distributive chain, Arrow chose to assign the lease. By leasing the tower and then assigning the lease, Arrow both introduced the tower into the stream of commerce and caused the tower to remain in that stream.
In Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178, the court, in relying upon Cintrone v. Hertz Truck Leasing & Rental Service (1965), 45 N.J. 434, 212 A.2d 769, emphasized that the strict product liability of a lessor is based on his expertise in knowing how long the leased product could safely be in service and the public exposed to it. In this case, if Arrow exercised any expertise, it was in favor of keeping the tower in operation by continuing the lease to Sollitt. As pointed out above, instead of removing itself from the distributive chain by terminating the lease at the time it sold the tower to Southeastern, Arrow indicated that it was proper and safe to permit the tower to remain in use by assigning the lease. Then, only 2 months after the assignment, while the lease Arrow initiated remained in effect, the workman whose executor filed this action was killed because of an alleged defect in the tower existing prior to the assignment. Under these circumstances, Arrow should not be absolved from strict product liability. By its assignment of an existing lease under which it was the original lessor, Arrow both reaped a profit and insured the leased product would remain in commerce. Arrow, therefore, should continue to bear the burdens of its conduct during the pendency of the lease.
Although plaintiff has an action pending against Southeastern, she may be prejudiced if she is not also permitted to maintain her action against Arrow. No one can predict whether Southeastern will be able to respond financially to any judgment which may be entered against it.
I therefore concur in the conclusion that count III of the complaint states a cause of action on a strict product liability theory against Arrow.