Cole v. Goodyear Tire & Rubber Co.

Decision Date10 March 1998
Docket NumberNo. 72045,72045
Citation967 S.W.2d 176
CourtMissouri Court of Appeals
PartiesKevin L. COLE, Respondent/ Cross-Appellant, v. THE GOODYEAR TIRE & RUBBER COMPANY, Appellant/Cross-Respondent.

Thomas C. Walsh, Elizabeth C. Carver, Bryan Cave, L.L.P., St. Louis, for appellant.

Paul E. Kovacs, Armstrong, Teasdale, Schlafly, Davis & Dicus, St. Louis, for respondent.


Appellant/Cross-Respondent, the Goodyear Tire & Rubber Company ("Goodyear"), appeals the judgment entered by the Circuit Court of the City of St. Louis, after a jury found for Respondent/Cross-Appellant, Kevin L. Cole ("plaintiff"), on his personal injury-negligence action against Goodyear and awarded plaintiff $7,800,000 in compensatory damages and $18,400,000 in punitive damages. The compensatory damages award was reduced, first by 25% by reason of the finding plaintiff was 25% contributorily at fault, and then to reflect plaintiff's settlement made with another defendant. 1 Plaintiff cross-appeals challenging the method by which the compensatory damages award was calculated. We affirm in part and reverse and remand in part.

On February 12, 1990, plaintiff was mounting a 16.5" Goodyear 10-ply tubeless truck tire on a 16.5" wheel rim. 2 As plaintiff was putting air into the tire, the tire came off the wheel rim with tremendous force, striking plaintiff in the head, and causing him serious and permanent head and facial injuries.

Plaintiff brought a personal injury-negligence action sounding in strict liability-failure to warn, against Goodyear, the manufacturer of the tire, and Tire Mart, the company that sold the tire. Plaintiff alleged the tire was defectively designed because it contained a multi-strand bead vulnerable to failure when the tire was being mounted, and a bead did in fact break when plaintiff was inflating the tire, causing the tire to come off the wheel rim. 3 Plaintiff further alleged the tire had a manufacturing defect. Plaintiff claimed Goodyear knew of the above problems yet failed to warn of the possibility the bead could break when the tire was being inflated, causing the tire to come off the wheel rim and become airborne. Plaintiff alleged Tire Mart misrepresented the tire was free from defects and had not properly inspected the tire before selling it to plaintiff.

A. The Accident

Plaintiff testified he was injured mounting a Goodyear tire he purchased from Tire Mart in 1988. The tire was a "take-off" tire, which is a tire that comes with a new truck but is taken off and exchanged for a different tire when the truck is sold. Plaintiff testified before he purchased the tire, he checked the beads and they looked okay. Plaintiff had mounted hundreds of tires and was aware of the dangers of overinflation. He testified split rims were the only tire rims he thought were dangerous to mount. Plaintiff could not recall the accident itself and testified he had not used ether to seat the beads. 4 The tire "exploded" as plaintiff was filling it with air, causing the tire to come off the wheel rim. 5 The tire and wheel rim struck plaintiff in the head.

Plaintiff sustained the following injuries: serious injuries to his brain, skull, forehead, jaw, nose, left ear; and plaintiff lost his left eye, hearing in the left ear, and seven teeth. Plaintiff testified, as a result of these injuries, he has trouble concentrating, suffers from incapacitating headaches, has little sense of smell, and has trouble breathing out of the right side of his nose. Plaintiff underwent a series of surgeries to reconstruct his face. His medical bills totaled $295,341.

Robert Ferris testified he was working with plaintiff at the time of the accident. Ferris testified they had lubricated the tire, seated the beads, and were ready to fill the tire with air. As plaintiff picked up the air hose, Ferris turned and walked away to work on a tire he had been repairing. Ferris testified while his back was turned, he heard a load noise, "more or less like a gun going off." When Ferris turned around, he saw plaintiff on his back, unconscious, and bleeding heavily. Ferris testified the tire plaintiff was inflating was lying close to him on the floor, as was the wheel rim, which was dented and had blood on it. Ferris testified he did not know how much air plaintiff had put in the tire before it "exploded." Ferris testified they had ether at the shop to help start diesel engines in cold weather, but said nobody at plaintiff's business, Archway Trenching and Excavating ("Archway"), ever used ether to seat beads on a tire.

Dr. John Delfino, a maxillofacial surgeon, testified regarding the surgeries he performed on plaintiff. The initial surgery was to save plaintiff's life; the following surgeries were to reconstruct plaintiff's face. Delfino testified he saw no evidence of fire or heat damage to plaintiff's face.

B. Lost Income

Plaintiff testified he founded Archway in 1975. In 1988, he made more than $200,000. Plaintiff testified he attempted to return to work in the spring of 1991, but had trouble operating heavy equipment because he had no depth perception as a result of the accident.

James England, a rehabilitation counselor, evaluated plaintiff's ability to return to work at Archway. England opined plaintiff's injuries made him unable to effectively manage Archway. England concluded plaintiff would need to find a simple repetitive type of job, one where he would probably earn $8,500 to $10,000 per year.

Wayne Stillings, a psychiatrist, testified plaintiff suffers from traumatic brain injury with associated cognitive deficits. He testified he recommended plaintiff stop operating Archway because "plaintiff presents a danger to himself and to other people." Mark Hoffman, a certified public accountant ("CPA"), testified plaintiff's total lost earnings, including past, present, and future income through age sixty-five, were $6,347,128.

C. Plaintiff's Experts

Alan Milner, a metallurgical engineer, opined the tire had a manufacturing defect. Milner testified, assuming the tire was manufactured in 1967, "there's a design defect in it, because it employs the multi-strand weftless design which had been known at that time for many years to be prone to failure by this mechanism [chording or bead failure] ... at relatively low pressures." Milner testified manufacturing the bead using single-strand wire, rather than multi-strand wire, and wire .050" in diameter, rather than .037" in diameter, would have "eliminated essentially the potential for [the bead] to fail under these kinds of circumstances." Milner further testified the tire had a manufacturing defect, a lack of compactness to the bead, which made the bead "not as strong as it could be." Milner opined the bead in question was already broken, or substantially broken, when plaintiff purchased the tire, and the "explosion" occurred at low pressure because there was no damage to the rubber.

Virgil Flanigan, a professor of mechanical engineering, testified he examined the tire and wheel rim which struck plaintiff. Flanigan opined ether had not been used on the tire.

Dr. Frank Landy, who held a Ph.D. in industrial psychology and human factors, testified over Goodyear's objections that a warning should: (1) warn of the hazard; (2) warn of the consequences; and (3) tell how to avoid the hazard. Landy testified in his opinion, the Goodyear tire should have had a warning advising: (1) the tire could become airborne; (2) if it became airborne it could kill someone; and (3) secure the tire to prevent it from becoming airborne.

D. Evidence of Goodyear's Prior Notice of Bead Failure

Plaintiff offered the following evidence to show Goodyear had knowledge, prior to the time this tire was sold, of the design and manufacturing defects that could cause the tire to fail as it did in this case. The trial court took judicial notice of Ewer v. Goodyear Tire and Rubber Company, 4 Wash.App. 152, 480 P.2d 260 (1971), an appellate court opinion from Washington state. The plaintiff in Ewer brought suit for damages suffered when a tractor tire, manufactured by Goodyear in 1966, exploded during mounting. 480 P.2d at 262. At trial, Robert W. Ellis, then chief design engineer for Goodyear, testified Goodyear had tires sent back because of complaints about the beads. Id. at 262 n. 2. The trial court took judicial notice of and allowed into evidence five patents; two were issued to Goodyear and dealt with various methods of tire manufacturing. In 1963, Goodyear was issued the "Rudder patent," an invention to provide a bead which holds wires in a compact bundle. In 1965, Goodyear was issued the "Anderson patent," an invention to improve bead cores ("grommets") used to reinforce the bead area. Plaintiff introduced into evidence Goodyear memoranda from 1974-1977 discussing the dangers inherent in mounting tires and discussing the desirability of placing warnings on tires before they were sold.


Goodyear offered testimony of four individuals in the tire business, who sold both new and used tires, manufactured by a variety of companies including Goodyear. All four witnesses testified they never heard of the phenomena of chording of multi-strand weftless beads constructed of .037" diameter wire. 6

Thomas Baker, of Baker Tire Analysts, testified he found no manufacturing or design defects in the Goodyear tire at issue. Baker opined plaintiff used gasoline or ether to facilitate mounting the tire and some of the fuel was ignited by the oxygen during the inflation process. Baker testified he concluded plaintiff used a flammable substance because of the soot found on the companion tire. Baker also opined plaintiff overinflated the tire.

Chester Stewart Patterson, a chemist with Goodyear since 1963, testified there was no design defect or manufacturing defect with the bead bundle. Patterson testified...

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