Hiner v. Bridgestone/Firestone, Inc.

• Decision Date: 30 July 1998
• Docket Number: No. 17057-8-III,17057-8-III
• Citation: 91 Wn.App. 722,959 P.2d 1158
• Court: Washington Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,302 Julia K. HINER, an individual, Appellant, v. BRIDGESTONE/FIRESTONE, INC., a corporation, Respondent and Cross Appellant. Panel Four

Page 722

91 Wn.App. 722

959 P.2d 1158, Prod.Liab.Rep. (CCH) P 15,302

Julia K. HINER, an individual, Appellant, v. BRIDGESTONE/FIRESTONE, INC., a corporation, Respondent and Cross Appellant.

No. 17057-8-III.

Court of Appeals of Washington Division 3,

Panel Four.

July 30, 1998.

Michael E. DeGrasse, Walla Walla, for Appellant

Michael J. Myers, Michael L. Wolfe, Randall & Danskin, Spokane, for Respondent and Cross Appellant.

SCHULTHEIS, Chief Judge.

Julia Hiner sued tire manufacturer Bridgestone/Firestone, Inc., for failing to imprint a warning on its snow tires that installation of such tires on only the front wheels of her car could cause poor handling. The trial court dismissed her consumer protection claim before trial and dismissed her products liability claim after she rested her case in chief. She contends on appeal that both claims should have gone to the jury. She also assigns error to the trial court's exclusion of an expert witness. We reverse and remand for trial.

FACTS

Ms. Hiner owned a 1988 Hyundai front-wheel-drive car.

Some time in the winter of 1990-91, her father gave her two Bridgestone/Firestone (Bridgestone) studded snow tires he had stored in his garage. The record does not show when or from whom Mr. Hiner purchased the tires or when the studs were added, but it is undisputed that the tires were manufactured without studs in 1985. Ms. Hiner had them installed on her car and drove without incident that winter. In early January 1993, she took the two tires to a service station run by Louis Preso and asked him to install them. He placed them on the front wheels and left the original Goodyear radial tires on the rear. Ms. Hiner had not read the warning in the Hyundai owner's manual, which stated that "[s]now tires should be installed on all four wheels; otherwise, poor handling may result."

Two weeks later, on January 18, 1993, Ms. Hiner set out to drive from Walla Walla to Spokane. She called the State Patrol before leaving that morning and learned the roads were bare and dry with occasional patches of snow and ice. She encountered no difficulties until around 8:30 a.m., when the weather turned misty. As she neared the top of a winding grade, her car began to fishtail on an icy patch of road. She corrected by steering toward the spin, but began sliding toward an oncoming grain truck. When she hit her brakes, her car slid into the side of the truck, causing her serious injuries. She has not been able to return to her careers in nursing and modeling since the accident.

Ms. Hiner filed suit against Mr. Preso in June 1994 for personal injuries caused by his negligent installation of the studded tires on the front wheels of her front-wheel-drive vehicle and his negligent failure to warn her of the dangers of that configuration. She eventually settled that lawsuit and filed a summons and complaint against Bridgestone in June 1995. The complaint alleged strict liability under the Products Liability Act (PLA), RCW 7.72, and negligent failure to warn. Specifically, she claimed the studded tires were not reasonably safe when manufactured because Bridgestone did not affix a warning regarding their proper installation. Additionally, she claimed Bridgestone had a duty to Bridgestone raised several affirmative defenses in its answers to the original and amended complaints, including its allegation that Ms. Hiner's injuries were the fault of other entities, pursuant to RCW 4.22.070 and RCW 4.22.015. Both parties moved for summary judgment and Ms. Hiner moved to strike the affirmative defense regarding fault of other entities. By letter rulings, the trial court granted Ms. Hiner's motion to strike the "other entities" defense, denied Bridgestone's motion to dismiss the PLA claim and granted Bridgestone's motion to dismiss the CPA claim.

provide adequate warnings after the tires were manufactured. Ms. Hiner amended the complaint in December 1995, adding a claim for damages to her business and property pursuant to the Consumer Protection Act (CPA), RCW 19.86. ¹

Trial proceeded on the PLA claim. Although Ms. Hiner originally sought admission of documents produced in 1988 that showed Bridgestone knew the dangers of improper installation of studded snow tires, she reserved entry of the documents until the testimony of expert witness William Nonnamaker. But Mr. Nonnamaker's deposition testimony was later excluded because the trial court found that he was not qualified to give an expert opinion on Bridgestone's knowledge of the danger at the time of manufacture or the need for a warning imprinted on the tire. Accident reconstruction expert Richard Cook testified that he had known since before 1984 the dangers of installing only two studded tires. In his opinion, the accident was caused by the fact that the "good aggressive" snow tires were installed on the front of the car, while the older Goodyear tires were left on the rear. He agreed on cross-examination, however, that putting the snow tires only on the front of the car did not conform to the recommendation found in the Hyundai owner's manual. A consultant to the gasoline At the close of Ms. Hiner's case, Bridgestone moved for a directed verdict or a dismissal of her claims. The trial court found no duty to warn due to insufficient evidence that the tires were unreasonably unsafe at the time of manufacture. It also found that Ms. Hiner had not presented a prima facie case that the Bridgestone tires were a proximate cause of her injuries. Dismissal was granted. Ms. Hiner petitioned for direct review by the Washington Supreme Court. Bridgestone cross-appealed the dismissal of its entity liability affirmative defense. The Supreme Court transferred the cause to this court for review.

service station industry testified that most gas dealers did not recognize that installing studded tires in this configuration could be a problem.

CONSUMER PROTECTION

Ms. Hiner first challenges the trial court's summary dismissal of her CPA claim. In a letter ruling, the trial court found that Stevens v. Hyde Athletic Indus., Inc., 54 Wash.App. 366, 370, 773 P.2d 871 (1989), which holds that the CPA does not cover actions for personal injury, is directly on point and controlling on this issue. Ms. Hiner argues that she is seeking to recover for injury to her careers and to her vehicle, neither of which is characterized as a personal injury. Bridgestone disagrees and further contends Ms. Hiner did not perfect her appeal of the CPA claim dismissal.

We begin by noting that a party may wait until entry of final judgment to appeal prior orders. Fox v. Sunmaster Prods., Inc., 115 Wash.2d 498, 504-05, 798 P.2d 808 (1990); RAP 2.4. Although Ms. Hiner neglected to mention in her notice of appeal the summary dismissal of her CPA claim, her appeal of the judgment necessarily included both the CPA and PLA claims. As the judgment reads, "Judgment as a matter of law dismissing Plaintiff's claims should be granted." (Emphasis added.) The judgment made final what was previously an interlocutory ruling. Consequently An order to dismiss a suit for failure to state a claim upon which relief can be granted, CR 12(b)(6), is treated as a summary judgment. CR 12(c). We review a summary judgment order de novo, considering the evidence in the light most favorable to the nonmoving party. CLEAN v. City of Spokane, 133 Wash.2d 455, 462, 947 P.2d 1169 (1997), cert. denied, 66 U.S.L.W. 3750, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (1998). Summary judgment is appropriate when the parties' pleadings and documents establish there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. Here we examine whether Ms. Hiner alleged facts sufficient to establish compensable injuries under the CPA.

Ms. Hiner perfected her appeal of the dismissals of both her claims when she appealed the judgment.

To prevail in a private CPA action under RCW 19.86.090, a plaintiff must establish five elements: (1) an unfair or deceptive act or practice (2) occurring in trade or commerce; (3) an impact on public interest; (4) an injury to the plaintiff in his or her business or property; and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986). Each of the elements must be satisfied before a CPA claim will be sustained. Id. at 793, 719 P.2d 531; Potter v. Wilbur-Ellis Co., 62 Wash.App. 318, 326, 814 P.2d 670 (1991).

In this case, the second, third and fifth elements are easily met. Bridgestone's alleged failure to warn of known dangers in the foreseeable use of the tires clearly occurred in the conduct of trade. Further, if the failure to warn constitutes an unfair or deceptive act, it meets the public interest element because many consumers were likely affected by it. Hangman, 105 Wash.2d at 790, 719 P.2d 531. Ms. Hiner also presented evidence that if she had known of the dangers in mixing snow tires and conventional tires she would not have allowed the tires to be installed improperly, satisfying the causation element of a CPA claim. Ms. Hiner's failure to establish the first and fourth elements, however, is fatal.

The CPA does not define "unfair or deceptive act Additionally, personal injuries are not recoverable under the CPA. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 318, 858 P.2d 1054 (1993). Ms. Hiner's amended complaint adding the CPA claim is entitled "Amended Complaint for Damages for Personal Injuries." These damages, including reimbursement for lost wages and earning capacity, medical expenses and damage to her car, arise from personal injuries and are commonly awarded in personal injury actions. See, e.g., Powell v. Viking Ins. Co., 44 Wash.App. 495, 500-01, 722 P.2d 1343 (1986). They are not injuries to "business or property" as contemplated by the CPA. Physicians Ins. Exch., 122 Wash.2d at 318, 858 P.2d 1054; Stevens, 54 Wash.App. at...