Crosby v. Cooper Tire & Rubber Co.

• Decision Date: 02 November 1999
• Docket Number: No. A99A1980, No. A99A2150.
• Citation: 240 Ga. App. 857,524 S.E.2d 313
• Court: Georgia Court of Appeals
• Parties: CROSBY et al. v. COOPER TIRE & RUBBER COMPANY. Cooper Tire & Rubber Company. v. Crosby et al.

524 S.E.2d 313

240 Ga. App. 857

CROSBY et al. v. COOPER TIRE & RUBBER COMPANY.

Cooper Tire & Rubber Company. v. Crosby et al.

Nos. A99A1980, A99A2150.

Court of Appeals of Georgia.

November 2, 1999.

Reconsideration Denied November 17, 1999.

Certiorari Denied April 28, 2000.

Cathey & Strain, Edward E. Strain III, David A. Sleppy, James E. Staples, Jr., Cornelia, Cottingham & Porter, Sidney L. Cottingham, Robert L. Porter, Jr., Douglas, for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Lucian Gillis, Jr., Melanie C. Eyre, Atlanta, Watson, Spence, Lowe & Chambless, Dawn G. Benson, Albany, for appellee. ELDRIDGE, Judge.

Jan D. Crosby, as the widow of Bobby Ira Crosby, as the administratrix of his estate; as the mother and next friend of Kelly L. Crosby, a minor, and as an individual on her own behalf, sued Cooper Tire & Rubber Company ("Cooper Tire") for negligent design, negligent manufacture, failure to warn, violation of the implied warranty of merchantability, and strict product liability for a defective consumer product, the left rear tire, which allegedly blew out and allegedly caused the family Ford Bronco II to roll over. On November 10, 1997, the case went to trial before a jury. On November 19, 1997, the jury returned verdicts in favor of Cooper Tire and against Mrs. Crosby.

On June 16, 1991, Bobby Crosby drove the Bronco 70 miles to his parents' home. Suddenly a loud popping sound, like a shotgun, occurred. Mr. Crosby seemed to lose control of the Bronco. The vehicle jerked to the right, turned sideways, and flipped over. Immediately prior to Mr. Crosby's loss of control of the Bronco, the testimony was that the rubber exterior of the left rear tire tore open with an explosive, shotgun-like sound. The left rear tire had allegedly blown out. Mr. Crosby was killed, and Mrs. Crosby and Kelly were seriously injured.

Less than a month prior to the rollover, Mrs. Crosby experienced shimmying or shaking in the Bronco. She took the vehicle in for service. The right rear tire was replaced as a result of failure, and the remaining tires were rotated and balanced, including the tire placed on the left rear. The shaking problem stopped. Mrs. Crosby thought that the shaking of the vehicle was caused by problems of tire balance, need for rotation, or misalignment. On Friday, June 14, 1991, Mrs. Crosby drove the Bronco and noticed the vehicle was again shaking. The Crosbys believed that the shaking again was caused by misalignment of the tires.

The tire that allegedly blew out was an Atlas A/W radial manufactured by Cooper Tire. In 1990, Cecil Bowen sold this tire as a part of a set of four to Mr. Crosby. Shortly after the purchase of the set, one of the tires had to be replaced, because the tire had a knot or separation, which was observable only when the vehicle was on the grease rack.

Case No. A99A1980

1. Mrs. Crosby's first enumeration of error is that the trial court erred in instructing the jury to disregard her expert's testimony as to how the tire failure began and progressed. We agree.

At trial, Mrs. Crosby's expert witness testified on direct examination, without objection, that a split in the inner liner of the tire occurred after the radial belts in the tire separated. The location of the split corroborated his opinion that the separation in the tire belts was due to a manufacturing defect which caused the split and that the split did not cause the belt separation from rollover impact. The expert went on to testify without objection that, immediately prior to the rollover, a "rapid air out" occurred from a burst bubble in the tire and that this air loss occurred in only one to two seconds. Rapid deflation in the left rear tire caused the tire to become softer and allowed the tire to steer to the right and have greater compliance so that the vehicle physically shifted farther in a turn and oversteered to the right, affecting the stability of the vehicle. When the tire deflated, this shift caused the driver to believe that the vehicle had changed direction, and the driver reacted by a steering change, causing a rollover.

At the end of the direct examination of this expert, the trial court took a recess. At that time, Cooper Tire raised objections that this expert witness testified to opinions not previously divulged either in two depositions or in answers to interrogatories regarding the two-second tire deflation and the reason why the impact did not cause the radial belt separation. Cooper Tire moved for the trial court to strike such testimony and to instruct the jury to disregard such opinion testimony. The trial court granted the motion to strike and instructed the jury to disregard that portion of plaintiff's expert's opinion.

(a) Cooper Tire failed to make its objections to the admission of plaintiff's expert's testimony contemporaneously with the allegedly objectionable testimony and thereby waived such grounds to object. See Goodtitle v. Roe, 20 Ga. 135, 140(4) (1856); Burtine v. State of Ga., 18 Ga. 534, 537(1) (1855); Nashville, Chattanooga &c. R. v. Ham, 78 Ga.App. 403, 408(1), 50 S.E.2d 831 (1948).

In this case, Cooper Tire moved to strike testimony as a discovery abuse sanction after the testimony had been given without objection and at the completion of the direct examination of the expert witness. The trial court erroneously granted such motion, striking the evidence and instructing the jury accordingly. Like any other objection, a motion to strike must be made contemporaneously with the objectionable testimony, or a waiver occurs. See Sharpe v. Dept. of Transp., 267 Ga. 267, 270-271(2), 476 S.E.2d 722 (1996); see also Dept. of Transp. v. Wallace Enterprises, 234 Ga.App. 1, 4(5), 505 S.E.2d 549 (1998).

(b) Exclusion of relevant and material evidence from trial is an inappropriate remedy for curing a discovery omission or abuse. The appropriate remedies for discovery abuse are (1) postponement of trial or recess of trial in progress, pending action to procure rebuttal evidence, or (2) a mistrial, if there is no practical opportunity to make discovery and to obtain rebuttal evidence. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581(5), 417 S.E.2d 383 (1992); Hanna Creative Enterprises v. Alterman Foods, 156 Ga.App. 376, 379(2), 274 S.E.2d 761 (1980); Jones v. Atkins, 120 Ga.App. 487, 490-491(2), 171 S.E.2d 367 (1969); Nathan v. Duncan, 113 Ga.App. 630, 641(7), 149 S.E.2d 383 (1966).

Such abuse of the trial court's discretion in excluding this expert's testimony as to a manufacturing defect and causation is harmful error requiring reversal and remand for retrial.

The trial court simply did not have authority or latitude to grant [Cooper Tire's] motion to strike [Crosby's] expert's [new] testimony. The trial court's judgment must therefore be reversed for a new trial so that a jury may consider [Crosby's expert's] testimony.

Hunter v. Nissan Motor Co., 229 Ga.App. 729, 730(1), 494 S.E.2d 751 (1997).

Since the other enumerations of error raised in the instant appeal and cross-appeal are likely to again arise on retrial, this Court will also address them. Further, many of the issues are based upon the sound exercise of the trial court's discretion, which may change upon retrial before another trial judge. See Davis v. Glaze, 182 Ga.App. 18, 21(6), 354 S.E.2d 845 (1987).

2. Crosby contends that the trial court erred in excluding Cooper Tire's admissions as to what types of tire failures are caused by manufacturing defects. We agree in part.

Cooper Tire's adjustment records are not hearsay but were admissions against interest of a corporation made through its agents and produced by such corporation through discovery. See Gorlin v. Halpern, 184 Ga.App. 10, 15(5), 360 S.E.2d 729 (1987), rev'd on other grounds, Burgess v. Gorlin, 258 Ga. 127, 365 S.E.2d 405 (1988). An admission against interest by a party is original evidence and is admissible as evidence as to the issue of liability. Cannon v. Rithmire, 156 Ga.App. 360, 361-362(2), 274 S.E.2d 746 (1980).

(a) Since there was a material issue of fact as to whether the radial belting separated because of a manufacturing defect or impact in a tire with 30,000 to 40,000 miles of wear, the documents from Cooper Tire's adjustment process in general were relevant and material to show as to all tires, as a matter of causation, the difference between customer fault, i.e., service abuse such as impact damage, under- or over-inflation, or road hazard damage, or a manufacturing defect, i.e., a problem with workmanship and materials, and the frequency of such manufacturing defects occurring after 30,000 to 40,000 miles of use. Limiting instructions must be given to the jury.

(b) Further, such adjustment documents were relevant, material, and admissible to demonstrate that the same model tires with prior or subsequent serial numbers from the same manufacturing plant had substantially similar manufacturing defects in either workmanship or materials or that such model tire had whatever incidence of manufacturing defects as compared with overall production of such tire. Browning v. Paccar, Inc., 214 Ga.App. 496, 498(1), 448 S.E.2d 260 (1994); Carsten v. Wilkes Supermarket &c., 181 Ga.App. 834(1), 353 S.E.2d 922 (1987); Gunthorpe v. Daniels, 150 Ga.App. 113(1), 257 S.E.2d 199 (1979).

(c) Prior similar manufacturing defects would also be admissible to show defects, notice, prior knowledge and causation and for purposes of punitive damages. See Mack Trucks v. Conkle, 263 Ga. 539, 544(3), 436 S.E.2d 635 (1993); Skil Corp. v. Lugsdin, 168 Ga.App. 754, 755-756(1), 309 S.E.2d 921 (1983); Gunthorpe v. Daniels, supra. However, when admitted for these purposes as prior substantially similar defects, the foundation must be laid that such occurrences were with the same or similar model steel belted tires, made with the same or similar materials and manufacturing processes, and having substantially similar defects. This does not mean that the...