Virginia Lawyers Weekly VA Lawyers Weekly
Even though a lift rented by one subcontractor at a construction site had a universal key, that did not mean sharing use of a lift is a common practice, and an electrician employed by different subcontractor at the site cannot sue the lessor of the lift for injuries the electrician allegedly suffered when he attempted to move the lift, which the lessee had moved to await pick-up by the lessor after expiration of the lease.
A lessor of heavy construction equipment – here, an aerial work platform, or “lift” – has no duty in tort to a stranger to the lease regarding an alleged defect in the lift, when the stranger is injured while operating the lift without the knowledge or consent of the lessor, contrary to the terms of the lease and after expiration of the lease period.
Plaintiff Carl Tuel was an electrician employed by Shine Electrical Group, a subcontractor on a Wal-Mart construction and renovation site in Northern Virginia. Defendant Hertz Rental Corporation leased the lift to R&R Steel, another sub at the site. The lease period ended April 30, 2009, when R&R notified Hertz that R&R no longer needed the lift and it was ready for pick-up. R&R moved the lift to an adjacent lot outside the fenced construction area where equipment was routinely left for drop-off and pick-up by rental companies.
During the night of May 4, 2009, unknown persons moved the lift back to the worksite without the knowledge or authorization of either R&R or Hertz. When Tuel arrived at the site an employee of a masonry sub asked Tuel to move the lift because it was in the other employee’s way. Tuel attempted to move the lift, it malfunctioned and Tuel claims he was injured as a result of the malfunction. Tuel has sued Hertz.
Tuel has offered no evidence that the lift was defective at the start of the lease period, nor does Tuel dispute hertz’s assertion the lift was not defective at the time. Although Hertz may have had a contractual duty to inspect, maintain or respond to problems with the lift, it had no such duty in tort to either R&R or Tuel. The 4th Circuit has made this point clear by holding that a lessor’s duty to inspect a leased chattel exists, if at all, in the parties’ lease; there is no duty in tort to do so.
Tuel also argues Hertz had a duty to warn him and others the lift was defective under § 388 of the Restatement (2nd) of Torts, which Virginia has adopted,. Until now, the Supreme Court of Virginia has narrowly applied § 388 to manufacturers of products in cases where the product is defective when it leaves the hands of the manufacturer. The Virginia high court has not yet extended § 388 to apply to lessors or to defects that arise after the initial delivery of the chattel. Even assuming that court would extend § 388, § 388 only imposes a duty to warn those strangers to the lease whom the lessor “should expect” to use the chattel. Tuel has offered no evidence Hertz expected or reasonably should have expected the lift would be moved after the end of the lease term from the pick-up lot to the construction site without the knowledge or authorization of Hertz or R&R and that Tuel would attempt to use the lift after the lease ended, without Hertz’s knowledge or authorization. Reports and testimony cited by Tuel, and the fact that the lift is operated by a universal key, do not demonstrate that it is common practice to share rental equipment after a lease has been terminated.
Finally, Tuel argues that Hertz owed a duty to Tuel to act reasonably once Hertz undertook to inspect or repair the leased chattel, after it responded to two complaints by the lessee about trouble starting the lift. The Virginia Supreme Court has never considered whether a lessor had a duty in tort in this context.
There is still a common law bar to negligence suits when the lessor of goods did not reasonably expect the plaintiff to use, consume or be affected by the goods. Outside of Virginia, this application is confirmed in the context of bailments. Here, Tuel has failed to set forth specific facts such that a reasonable jury could find that Hertz reasonably expected that after termination of the lease, an unauthorized person would remove the lift from the pick-up lot and return it to the site where it would be used. On this record, Hertz owes no duty in tort to Tuel.
Summary judgment for defendant.
Tuel v. Hertz Equipment Rental Corp. (Ellis) No. 1:11cv405, Sept. 16, 2011; USDC at Alexandria, Va. VLW 011-3-516, 15 pp.
