OPINION
LOPEZ, Judge.
The plaintiff-appellee brought a wrongful death action for the death of her husband as a result of an airplane crash. The trial court sitting without a jury found for the plaintiff and awarded damages in the sum of $235,000.00. The defendant appeals. We reverse.
We discuss the following issues: (1) whether strict liability in tort should apply to the facts of this case; and (2) whether the affirmative defenses of contributory negligence and assumption of the risk should have been applied.
Facts
This action arose from an airplane accident which occurred on September 30, 1974 near Farmington, New Mexico. The defendant owned and operated an FAA certified field operation at the Farmington Municipal Airport. The plaintiff’s decedent, Dr. Rudisaile, was a qualified pilot and the sole occupant of a Piper Cherokee 140 E which had been rented from the defendant.
On September 30, 1974, Alan Hawkinson, the defendant’s acting flight instructor, flew the Cherokee 140 E on three separate flights. At the end of the third flight, Mr. Hawkinson delivered the aircraft to Mr. Maxwell, one of defendant’s employees, for a scheduled oil and oil filter change. Mr. Maxwell drained the oil and replaced the oil filter, but failed to replenish the oil that had been drained from the engine. He did, however, make an entry into the aircraft engine log book that the oil filter and oil had been changed. Dr. Rudisaile arrived at the office of the defendant, conversed with Mr. Hawkinson, and proceeded to the aircraft. Maxwell handed the engine log book to him. The doctor took the log book, climbed into the right front seat of the aircraft, started the engine, and taxied to the runway. The doctor did not make the customary pre-flight check of the aircraft prior to take-off. He took off from the Farmington Airport at about 3:36 p. m. The last visual contact Farmington’s FAA air traffic control tower had with Rudisaile’s aircraft was about two miles from the crash site.
The defendant filed findings of fact which asked the court to find that the proximate cause of the crash was the decedent’s failure to obey federal air regulations; that the decedent knew or, by the exercise of reasonable care, should have known that the aircraft did not have oil; that such act or omission was a proximate cause of the crash; that there was no product defect in the aircraft and that insufficient oil in the aircraft engine was not an inherent defect in the engine, but was a failure by defendant, Hawk Aviation, Inc., to properly service the aircraft for users such as plaintiff’s decedent.
The defendant also filed conclusions of law which asked the court to conclude that plaintiff failed to prove that the proximate cause of the crash was the negligence of the defendant; that the facts proved in this case do not support the application of the law of strict liability in tort; and that the decedent was contributorially negligent.
The trial court denied the defendant’s requested findings and conclusions, filed its own findings and conclusions and entered judgment.
The following are the pertinent findings and conclusions of the trial court:
Findings of Fact
1.On September 30, 1974, defendant rented an airplane owned by defendant to
the deceased Stanley E. Rudisaile, a qualified pilot.
2. Defendant was regularly engaged in the business of renting airplanes to qualified pilots of the general public.
3. The airplane rented to the deceased Stanley E. Rudisaile was expected to and did reach him, the user, without substantial change in the condition in which it was rented.
4. Prior to leasing the airplane to the decedent the oil had been drained from the engine and not replaced.
5. The defendant rented a defective product, an airplane without oil in the engine, which was unreasonably dangerous to the user, decedent.
6. The decedent took off in the rented airplane and shortly thereafter the airplane crashed about five miles southwest of the airport.
7. As a result of the injuries received in the crash the decedent died on October 1, 1974.
8. The proximate cause of the crash and resulting death of decedent was lack of oil in the engine.
9. The decedent used the rented aircraft for the purpose for which it was intended to be used.
Conclusions of Law
2. The defendant as lessor of the airplane which was in a defective condition reasonably dangerous to the decedent is strictly liable in tort for the decedent’s death.
4. The decedent did not misuse the airplane rented to him by defendant.
Defendant filed a motion for a new trial. The motion for new trial was denied. Subsequently, this appeal was filed.
Point I
Does strict liability in tort apply to the facts of this case?
The question of whether the doctrine of strict products liability is applicable is one of law to be decided by the court. See Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958); First Nat. Bk., Albuquerque v. Nor-Am Agr. Prod. Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975).
New Mexico has accepted the doctrine of strict products liability by adopting § 402(A) of the Restatement of the Law, Torts 2nd (1965) and extended it to lessors in Stang v. Hertz, 83 N.M. 730, 497 P.2d 732 (1972); Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (Ct.App.1975), cert. denied, 88 N.M. 319, 540 P.2d 249 (1975).
Section 402(A) of the Restatement reads as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
The question presented in the instant case is whether an airplane which has no oil in it constitutes a defect under § 402(A) of the Restatement of Torts.
Justice Traynor, in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 700, 377 P.2d 897, 900 (1962), held that a manufacturer was held strictly liable in tort when he placed an article on the market knowing that it was to be used without inspection for defects, and the article proved to have a defect that caused injury to a human being.
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OPINION
LOPEZ, Judge.
The plaintiff-appellee brought a wrongful death action for the death of her husband as a result of an airplane crash. The trial court sitting without a jury found for the plaintiff and awarded damages in the sum of $235,000.00. The defendant appeals. We reverse.
We discuss the following issues: (1) whether strict liability in tort should apply to the facts of this case; and (2) whether the affirmative defenses of contributory negligence and assumption of the risk should have been applied.
Facts
This action arose from an airplane accident which occurred on September 30, 1974 near Farmington, New Mexico. The defendant owned and operated an FAA certified field operation at the Farmington Municipal Airport. The plaintiff’s decedent, Dr. Rudisaile, was a qualified pilot and the sole occupant of a Piper Cherokee 140 E which had been rented from the defendant.
On September 30, 1974, Alan Hawkinson, the defendant’s acting flight instructor, flew the Cherokee 140 E on three separate flights. At the end of the third flight, Mr. Hawkinson delivered the aircraft to Mr. Maxwell, one of defendant’s employees, for a scheduled oil and oil filter change. Mr. Maxwell drained the oil and replaced the oil filter, but failed to replenish the oil that had been drained from the engine. He did, however, make an entry into the aircraft engine log book that the oil filter and oil had been changed. Dr. Rudisaile arrived at the office of the defendant, conversed with Mr. Hawkinson, and proceeded to the aircraft. Maxwell handed the engine log book to him. The doctor took the log book, climbed into the right front seat of the aircraft, started the engine, and taxied to the runway. The doctor did not make the customary pre-flight check of the aircraft prior to take-off. He took off from the Farmington Airport at about 3:36 p. m. The last visual contact Farmington’s FAA air traffic control tower had with Rudisaile’s aircraft was about two miles from the crash site.
The defendant filed findings of fact which asked the court to find that the proximate cause of the crash was the decedent’s failure to obey federal air regulations; that the decedent knew or, by the exercise of reasonable care, should have known that the aircraft did not have oil; that such act or omission was a proximate cause of the crash; that there was no product defect in the aircraft and that insufficient oil in the aircraft engine was not an inherent defect in the engine, but was a failure by defendant, Hawk Aviation, Inc., to properly service the aircraft for users such as plaintiff’s decedent.
The defendant also filed conclusions of law which asked the court to conclude that plaintiff failed to prove that the proximate cause of the crash was the negligence of the defendant; that the facts proved in this case do not support the application of the law of strict liability in tort; and that the decedent was contributorially negligent.
The trial court denied the defendant’s requested findings and conclusions, filed its own findings and conclusions and entered judgment.
The following are the pertinent findings and conclusions of the trial court:
Findings of Fact
1.On September 30, 1974, defendant rented an airplane owned by defendant to
the deceased Stanley E. Rudisaile, a qualified pilot.
2. Defendant was regularly engaged in the business of renting airplanes to qualified pilots of the general public.
3. The airplane rented to the deceased Stanley E. Rudisaile was expected to and did reach him, the user, without substantial change in the condition in which it was rented.
4. Prior to leasing the airplane to the decedent the oil had been drained from the engine and not replaced.
5. The defendant rented a defective product, an airplane without oil in the engine, which was unreasonably dangerous to the user, decedent.
6. The decedent took off in the rented airplane and shortly thereafter the airplane crashed about five miles southwest of the airport.
7. As a result of the injuries received in the crash the decedent died on October 1, 1974.
8. The proximate cause of the crash and resulting death of decedent was lack of oil in the engine.
9. The decedent used the rented aircraft for the purpose for which it was intended to be used.
Conclusions of Law
2. The defendant as lessor of the airplane which was in a defective condition reasonably dangerous to the decedent is strictly liable in tort for the decedent’s death.
4. The decedent did not misuse the airplane rented to him by defendant.
Defendant filed a motion for a new trial. The motion for new trial was denied. Subsequently, this appeal was filed.
Point I
Does strict liability in tort apply to the facts of this case?
The question of whether the doctrine of strict products liability is applicable is one of law to be decided by the court. See Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958); First Nat. Bk., Albuquerque v. Nor-Am Agr. Prod. Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975).
New Mexico has accepted the doctrine of strict products liability by adopting § 402(A) of the Restatement of the Law, Torts 2nd (1965) and extended it to lessors in Stang v. Hertz, 83 N.M. 730, 497 P.2d 732 (1972); Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (Ct.App.1975), cert. denied, 88 N.M. 319, 540 P.2d 249 (1975).
Section 402(A) of the Restatement reads as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
The question presented in the instant case is whether an airplane which has no oil in it constitutes a defect under § 402(A) of the Restatement of Torts.
Justice Traynor, in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 700, 377 P.2d 897, 900 (1962), held that a manufacturer was held strictly liable in tort when he placed an article on the market knowing that it was to be used without inspection for defects, and the article proved to have a defect that caused injury to a human being. The reasons for imposing strict liability include the difficulty in proving the negligence of a manufacturer because of the manufacturing process involved and the latency of the defect. In addition, for policy reasons, courts desire to insure that the cost of defective products are borne by the manufacturers who put such products on the market, and not borne by the injured persons who are powerless to protect themselves.
The trial court erred in concluding that the doctrine of strict liability applied in this case. The explanation of defect set out in Stang, supra, as quoted from Lechuga, Inc. v. Montgomery, 12 Ariz.App. 32, 467 P.2d 256 (1970) is as follows:
“ ‘Inherent in these policy considerations is the character of the defect itself, that is, one occurring in the manufacturing process and the unavailability of an adequate remedy on behalf of the injured plaintiff.’ ”
Such is not the case here. The airplane rented to the decedent had no hidden or latent defects which could not be discovered by the exercise of reasonable care. There is a great difference between a “defect” which would warrant the imposition of strict liability in tort and a condition causing physical injury which results from negligence.
The aircraft in this case was not “defective” in the sense intended by § 402(A), supra. The plane simply had no oil. This condition was caused by negligence, and involved conduct which was not intended to be subject to strict liability in tort.
Point II
Affirmative defenses of contributory negligence and assumption of risk should be applied.
The defendant argues that decedent was an experienced pilot and thus, contributory negligence or assumption of the risk should have been applied because of the decedent’s failure to discover the lack of oil. In Point I we determined that strict liability in tort does not apply to the facts of this case. Therefore, the defenses available under a negligence theory would be applicable. We make no comment on the merits of these defenses. Further, because Point I is dis-positive of this appeal, we do not address the other issues raised by appellant.
The trial court’s judgment is reversed and the case remanded for proceedings consistent with this opinion.
IT IS SO ORDERED.
HERNANDEZ, J., concurs. SUTIN, J., dissenting.