Healey v. Firestone Tire & Rubber Co.

• Citation: 663 N.E.2d 901,640 N.Y.S.2d 860,87 N.Y.2d 596
• Court: New York Court of Appeals
• Decision Date: 15 February 1996
• Parties: , 663 N.E.2d 901, Prod.Liab.Rep. (CCH) P 14,498 George HEALEY, Jr., Respondent, v. FIRESTONE TIRE & RUBBER COMPANY et al., Appellants, et al., Defendant.

Page 860

640 N.Y.S.2d 860

87 N.Y.2d 596, 663 N.E.2d 901,

Prod.Liab.Rep. (CCH) P 14,498

George HEALEY, Jr., Respondent, v. FIRESTONE TIRE & RUBBER COMPANY et al., Appellants, et al., Defendant.

Court of Appeals of New York.

Feb. 15, 1996.

[87 N.Y.2d 597] [663 N.E.2d 902] Herrick, Feinstein LLP, New York City (Susan T. Dwyer, Mara B. Levin and Harvey M. Grossman, of the California Bar, admitted pro hac vice, of counsel), for appellants.

[87 N.Y.2d 598] Weisfuse & Weisfuse, New York City (Martin H. Weisfuse and Maureen A. Sockett, of counsel), for respondent.

[87 N.Y.2d 599] Herzfeld & Rubin, P.C., New York City (Michael Hoenig, David B. Hamm and Linda M. Brown, of counsel), and Hugh F. Young, Jr., of the Virginia Bar, admitted pro hac vice, for Product Liability Advisory Council, Inc., amicus curiae.

OPINION OF THE COURT

LEVINE, Judge.

Plaintiff was severely injured when struck in the head by a part of a multipiece truck tire rim which explosively separated when the tire which had just been inflated on it was dropped by an employee of defendant All-Inn Trucking, Inc. The accident occurred September 17, 1991. Presuit discovery orders were granted on behalf of plaintiff, as well as a temporary order requiring All-Inn to preserve all of its truck tire rims on its vehicles and at its premises. Pursuant to the discovery orders, the deposition of Joseph Biassi, president of All-Inn, was taken October 21, 1991, Carl J. Lange, plaintiff's expert, examined and inventoried rims on All-Inn trucks and at its premises on October 26, 1991 and plaintiff's expert O.J. Hahn examined the rims on all 10 of All-Inn's trucks and those stored on its premises on December 7, 1991. Hahn identified three rims, all manufactured and designed by defendants Firestone Tire & Rubber Company and Bridgestone/Firestone, Inc. (collectively referred to as Firestone), as being the only rims of All-Inn that could have been involved in the accident. This theory was based on the assertion that the rims evidenced signs of substantial "chording", i.e., being distorted and out of round, which Hahn opined was the cause of the explosive separation of the rim involved in plaintiff's accident. According to plaintiff, the three rims were marked for identification and left in the custody of All-Inn's expert pursuant to an understanding with the trucking company's insurance carrier that they would be preserved.

Plaintiff commenced this action against Firestone and All-Inn in June 1992. The causes of action against Firestone were grounded in negligence and strict products liability under both manufacturing defect and design defect theories. Approximately a year later, it was disclosed that All-Inn had lost the three rims identified by plaintiff's expert Hahn as the possible instrumentalities for the rim involved in the accident.

Firestone then moved for summary judgment, asserting that it was undisputed that the multipiece rim which plaintiff alleged caused the accident was irretrievably lost and that, therefore, plaintiff's evidence was insufficient as a matter of law to establish the identity of the manufacturer of the offending rim or that a defect in that product caused the accident. Supreme Court denied Firestone's motion, concluding that there was sufficient circumstantial evidence to implicate Firestone as the manufacturer of the accident-causing rim. The court further concluded that a triable issue of fact was presented that the rim's defective design was the cause of its explosive separation, based upon plaintiff's expert Hahn's opinion excluding any other possible cause.

A majority at the Appellate Division agreed with Supreme Court that plaintiff had submitted sufficient circumstantial evidence to permit the inference that Firestone made the accident rim, 212 A.D.2d 351, 622 N.Y.S.2d 246. The Court also held that, as to the plaintiff's design defect strict products liability cause of action, Firestone was not prejudiced by the disappearance of the suspect rims identified by plaintiff's expert, since the actual design of the product could be independently established. The Court however, concluded that the disappearance of the rims "fatally prejudiced" Firestone's defense against plaintiff's negligence and manufacturing defect causes of action id., at 352, 622 N.Y.S.2d 246 and, therefore, modified Supreme Court's order by dismissing those claims, leaving intact only the design defect cause of action. The Appellate Division then granted Firestone leave upon the certified question, "[w]as the order of [that] Court, which modified the order of the Supreme Court, properly made?" The parties agree that the certified question presents two issues: (1) whether there was sufficient evidence to identify Firestone as the manufacturer of the offending rim, and (2) whether the plaintiff's inability to identify the actual rim involved in the accident fatally prejudiced Firestone in defending plaintiff's claim that the accident was due to the design of the rim and not another cause.

We reverse and answer the certified question in the negative. This case presents no exception to the general rule that one of the necessary elements plaintiff in a strict products liability cause of action must establish by competent proof is that it was the defendant who manufactured and placed in the stream of commerce the injury-causing defective product (see, Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 504, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338; Morrissey v. Conservative Gas Corp., 285 App.Div. 825, 136 N.Y.S.2d 844, affd. 1 N.Y.2d 741, 152 N.Y.S.2d 289, 135 N.E.2d 45).

The identity of the manufacturer of a defective product may be established by circumstantial evidence (see, Taylor v. General Battery Corp., 183 A.D.2d 990, 991, 583 N.Y.S.2d 325; Otis v. Bausch & Lomb, 143 A.D.2d 649, 650, 532 N.Y.S.2d 933; Prata v. National R.R. Passenger Corp., 70 A.D.2d 114, 118, 420 N.Y.S.2d 276, appeal dismissed 48 N.Y.2d 975; 1 Weinberger, New York Products Liability § 8:05). Moreover, circumstantial evidence may sufficiently demonstrate the maker's identity, notwithstanding the destruction of the allegedly defective product after use (see, Taylor v. General Battery Corp., supra; Otis v. Bausch & Lomb, supra ).

The circumstantial evidence of identity of the manufacturer of a defective product causing personal injury must establish that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product (see, D'Amico v. Manufacturers Hanover Trust Co., 173 A.D.2d 263, 266, 569 N.Y.S.2d 962; see also, Vecta Contract v. Lynch, 444 So.2d 1093 [Fla Ct App 4th Dist], review denied 453 So.2d 44; Naden v. Celotex Corp.,...