dissenting:
I respectfully dissent from the decision of my colleagues holding that count III of the complaint states a cause of action in strict products liability against Arrow Equipment Company.
In my view count III fails to state a cause of action against Arrow because the record establishes that Arrow was removed from the chain of distribution of the allegedly defective tower through the sale of the tower and assignment of the lease two months prior to the accident involving plaintiff’s decedent. In her complaint, plaintiff made no reference to the fact that on July 12, 1973, Arrow sold the tower as part of a bulk sale transaction and assigned all outstanding leases to Southeastern Tower and Equipment Company. The assignment included the lease under which Arrow had rented the tower to the Sollitt Construction Company, the general contractor on the jobsite where plaintiff’s decedent was injured fatally. The facts were set forth in Arrow’s motion to dismiss and were supported by exhibits appended to the motion. The exhibits (contract of sale, assignment of leases, and rental agreement) established that from July 12,1973, until September 20,1973, the date of the accident, the tower was owned by Southeastern which then leased it to Sollitt.
Under Illinois law the commercial lessor occupies a position in the chain of distribution of a product which is comparable to that of a retailer. (Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178.) Accordingly, the leasing of a defective product renders the commercial lessor susceptible to the imposition of liability for resultant injuries under a strict products liability theory. The rationale employed by this court in imposing liability upon the lessor in Galluccio is that the lessor possesses expertise with respect to the service life and fitness of the product and controls the length of the lease which enables him to control the length of time during which such product will be in service and the public exposed to it. (Galluccio v. Hertz Corp., 1 Ill. App. 3d 272, 277-78, citing Cintrone v. Hertz Truck Leasing & Rental Service (1965), 45 N.J. 434, 212 A. 2d 769.) In my view this rationale is applicable only when the party charged with liability was the lessor of the allegedly defective product at the time the injury occurred or when the circumstances of the case are such that the previous lessor has retained a present and active role in the chain of distribution.
When Arrow sold the tower and assigned the lease to Southeastern, it relinquished all control over the duration of the lease and the maintenance of the tower. Service people from Arrow visited the construction site for inspection and repair of the tower only up to the date of the sale and assignment of the lease. After July 12,1973, Southeastern assumed control of the apparatus. Arrow thus was effectively removed from the chain of distribution as envisioned by this court in Galluccio. No Illinois case has been found which holds that a party who is the previous owner and lessor of an allegedly defective product may be held responsible under a theory of strict products liability when the accident occurs subsequent to a casual sale of the leased property and the lease is assigned to a third party. I believe that such a holding is an extension of the law of products liability not supported by Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Galluccio, and their progeny. Under Galluccio, the plaintiff has filed a strict products liability action against Southeastern, the lessor at the time of the incident, and that action is pending. If plaintiff is able to establish that the tower was defective and that the defect caused the death of plaintiff’s decedent, she will recover under the pending strict products liability suit. She is not prejudiced by a dismissal of such a suit against a former lessor.