Ilosky v. Michelin Tire Corp.

• Decision Date: 05 July 1983
• Docket Number: No. 15710,15710
• Citation: 307 S.E.2d 603,172 W.Va. 435
• Court: West Virginia Supreme Court
• Parties: Karen ILOSKY v. MICHELIN TIRE CORP.

Page 603

307 S.E.2d 603

172 W.Va. 435

Karen ILOSKY v. MICHELIN TIRE CORP.

No. 15710.

Supreme Court of Appeals of West Virginia.

July 5, 1983.

Rehearing Denied Oct. 20, 1983.

Syllabus by the Court

1. "In this jurisdiction the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer's standards should have been at the time the product was made." Syllabus Point 4, Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979).

2. Use defectiveness covers situations when a product may be safe as designed and manufactured, but which becomes defective because of the failure to warn of dangers which may be present when the product is used in a particular manner.

3. For the duty to warn to exist, the use of the product must be foreseeable to the manufacturer or seller.

4. The determination of whether a defendant's efforts to warn of a product's dangers are adequate is a jury question.

5. "It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting." Syllabus Point 3, Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975).

6. Product liability actions may be premised on three independent theories--strict liability, negligence, and warranty. Each theory contains different elements which plaintiffs must prove in order to recover. No rational reason exists to require plaintiffs in product liability actions to elect which theory to submit to the jury after the evidence has been presented when they may elect to bring suit on one or all of the theories.

7. " 'Future damages' are those sums awarded to an injured party for ... loss or impairment of earning capacity." Syllabus Point 2, in part, Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982); syllabus point 10, in part, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

8. "The permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." Syllabus Point 9, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

9. "Where an injury is of such a character as to be obvious, the effects of which are reasonably common knowledge, it is competent to prove future damages either by lay testimony from the injured party or others who have viewed his injuries, or by expert testimony, or from both lay and expert testimony, so long as the proof adduced thereby is to a degree of reasonable certainty." Syllabus Point 11, in part, Jordan v. Bero, 160 W.Va. 105, 210 S.E.2d 618 (1974).

10. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption." Syllabus, Addair v. Majestic Petroleum Co., W.Va., 232 S.E.2d 821 (1977).

11. The collateral source rule excludes payments from other sources to plaintiffs from being used to reduce damage awards imposed upon culpable defendants.

12. Prejudgment interest is allowed in personal injury actions when certain expenditures can be rendered certain by calculation and when these elements represent a direct pecuniary loss to the injured party.

13. Injured plaintiffs should not have to forego the collateral source rule merely to recover prejudgment interest.

14. "In an action for damages for personal injuries, an argument of counsel to the jury based on a mathematical formula, or fixed-time basis, suggesting a money value for pain and suffering is not based on facts, or reasonable inferences arising from facts before the jury, and constitutes reversible error." Syllabus Point 5, Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961).

15. Although the question of the adequacy of a warning is one of fact to be determined by the jury, experts may testify on such matters in their fields of expertise.

16. "In order for evidence of tests or experiments to be admissible, the essential conditions at the time of the experiment must be substantially similar to those existing under the occurrence, but it is not necessary that the conditions be identical in every respect." Syllabus Point 6, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1961).

17. Admission of evidence of tests or experiments is usually within the sound discretion of the trial court. Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1961).

18. The conduct of a civil trial does not have to be perfect in order to be affirmed on appeal. Rule 61, W.Va. R.C.P.

19. "Punitive or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for willfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong." Syllabus Point 4, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982); Syllabus Point 1, O'Brien ien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941).

20. "In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Syllabus Point 17, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974); Syllabus Point 5, Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965); Syllabus Point 3, Walker v. Monogahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).

Schrader, Stamp, Byrd, Byrum, Johnson & Companion, Frederick P. Stamp, Jr., William D. Wilmoth and Yolonda G. Lambert, Wheeling, John M. Kenney, Garden City, N.Y., Bachmann, Hess, Bachmann & Garden, John B. Garden and Paul T. Tucker, Wheeling, for appellant.

Zagula & Hill, E.A. Zagula and Barry M. Hill, Weirton, for appellee.

McGRAW, Chief Justice:

This is an appeal from a final judgment of the Circuit Court of Hancock County which awarded the appellee, Karen M. Ilosky, $500,000 in compensatory damages for injuries she suffered in an automobile accident. The appellant is Michelin Tire Corp. (Michelin), a tire distributor. Ferguson Tire Service Co. (Ferguson), a defendant below with Michelin, has not appealed the judgment, but has filed a brief as an appellee asking the Court to affirm the lower court's judgment. ¹

The facts in this case span a lengthy period of time. In June, 1974, Edward Ilosky, Karen's father, purchased a 1966 Ford Mustang from a neighbor for his daughter to drive to work. At this time, Karen was 22 years old. Mr. Ilosky took the automobile for a test drive before he purchased it. At the time of purchase, the automobile was equipped with Michelin radial tires on the rear axle and either radial or conventional tires on the front axle.

At his daughter's request, Mr. Ilosky took the automobile to Ferguson's October 22, 1974, to purchase snow tires and to have them mounted on the rear axle. Mr. Ilosky purchased two recapped conventional snow tires and a Ferguson employee mounted them on the rear axle. At Mr. Ilosky's direction, the employee moved the radial tires on the rear axle to the front axle because the rear tires carried more tread than the front tires. As a result, the automobile was then equipped with radial tires on the front axle and conventional tires on the rear axle. Ferguson's employee did not advise Mr. Ilosky that mixing tire types in this manner was not recommended or that it could create a driving condition which could result in injury.

After purchasing the snow tires, Mr. Ilosky then met his daughter at her dentist's office, a short distance away. They exchanged automobiles so that Karen could drive her vehicle to her job. During the drive, the appellee was traveling at between 20 and 30 miles per hour when she began to move from the left to the right lane of W.Va. 2 near Follansbee, W.Va. ² At the same time or shortly afterwards, the appellant entered a curve in the highway. At that point, the appellee was unable to control her automobile, and it left the highway, crashing into a utility pole and splitting in two parts. When rescue personnel arrived, they found Karen trapped in the automobile.

As a result of the accident, doctors amputated Karen's right leg. She also suffered a fractured pelvis and other injuries. She required hospitalization for more than four months and required subsequent surgery on her injured leg. Karen also underwent skin graft surgery which left scars on her abdomen and thighs.

The appellee filed suit against Michelin and Ferguson claiming they were responsible for her injuries. She sued on two theories. First, the appellee claimed that both Michelin and Ferguson had been negligent in not providing warnings to Mr. Ilosky about the dangers of mixing the tires and in having the tires mixed by Ferguson. Second, she alleged that the failure to provide an adequate warning of the dangers of mixing constituted a defect which made the radial tires unreasonably dangerous, and therefore subjected Michelin to strict liability. ³ The trial judge permitted the jury to consider both theories, but struck the appellee's claim for punitive damages from the complaint.

At trial, the primary question concerned the cause of the accident. The appellee claimed that the use of radial tires on the front axle and conventional tires on the rear axle caused the automobile to "oversteer." ⁴ This condition, coupled with the normal gravitational forces generated by Karen's changing lanes near or in a curve, resulted in loss of control of the vehicle which led to the accident. The appellee presented expert testimony on this point.

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