Kuiper v. Goodyear Tire & Rubber Co., 82-224

• Decision Date: 19 January 1984
• Docket Number: No. 82-224,82-224
• Citation: 40 St.Rep. 1861,207 Mont. 37,673 P.2d 1208
• Parties: Dennis KUIPER, Plaintiff and Respondent, v. The GOODYEAR TIRE & RUBBER COMPANY, et al., Defendant and Appellant.
• Court: Montana Supreme Court

Page 1208

673 P.2d 1208

207 Mont. 37

Dennis KUIPER, Plaintiff and Respondent, v. The GOODYEAR TIRE & RUBBER COMPANY, et al., Defendant and Appellant.

No. 82-224.

Supreme Court of Montana.

Submitted May 12, 1983.

Decided Nov. 25, 1983.

Rehearing Denied Jan. 19, 1984.

Dzivi, Conklin & Nybo, William Conklin, argued, Great Falls, John C. Noonan, argued, Kansas City, Mo., Kenneth R. Betzler, Akron, Ohio, for defendant and appellant.

Conner, Baiz & Olson, Dennis P. Conner, argued, Great Falls, Niewald, Risjord & Waldeck, John C. Risjord, argued, Kansas City, Mo., for plaintiff and respondent.

HARRISON, Justice.

Plaintiff, Dennis Kuiper, brought a products liability action against the Goodyear Tire and Rubber Co. (Goodyear) after he was injured while working on a multi-piece truck wheel rim. Following a twenty-five day trial in the Eighth Judicial District Court for Cascade County, the jury awarded plaintiff $325,000 in compensatory damages and $1,500,000 in punitive damages and judgment was entered based upon the jury verdict. The District Court denied a new trial. Goodyear appeals. We reverse and remand for new trial.

On August 13, 1979, plaintiff, a twenty-two year old newly-married man, was employed at an independent Goodyear dealership in Great Falls, Montana, known as Andy's D & K. He had been employed for only a short period of time and was working in the shop as a tire repairman, called a tirebuster. Late in the afternoon of August 13, the service manager instructed Kuiper to do a flat repair on a multi-piece truck tire with a rim known as a Goodyear K-28. Kuiper had never worked on that type of a wheel, so a co-worker, David Huston, helped Kuiper dismount the tire, repair the tube, and instructed Kuiper how to put the tire and rim back together. Huston left to work on another project, and Kuiper assembled the rim and tire and inflated the tire in a safety cage. After the tire was inflated, Kuiper rolled the tire to the truck and proceeded to mount the tire and wheel on the wheel lugs. As he was mounting the tire and wheel the ring explosively separated from the rim base and struck Kuiper in the face. Kuiper suffered multiple facial fractures, jaw fracture, loss of teeth, diploplia of the right eye, facial paralysis and a cerebral contusion. Doctors testified that as a result of these injuries, Kuiper continued to suffer from facial paralysis, loss of sense of smell and taste, loss of memory and concentration, anxiety, depression and traumatic neurosis. Medical evidence was conflicting as to whether Kuiper had suffered organic brain damage.

After partial recovery, Kuiper returned to work at Andy's D & K as a salesman. He was unable to function as a salesman due to memory lapses and loss of concentration. He next returned to work in the shop but was unable to cope with the anxiety he experienced while working there. Following medical recommendations that he should change occupation, Kuiper enrolled at a vocational technical school in Missoula studying forestry.

On December 28, 1979, Kuiper filed a complaint in District Court against Goodyear. The complaint sought damages from Goodyear as the designer and manufacturer of the K-type wheel, for strict liability for defective design, failure to warn, manufacturing defect and malicious conduct.

Because the case is returned for new trial, we need not review the extensive factual record. Our factual review will be brief with the aim of illustrating the contentions of the parties. The wheel which separated and caused Kuiper's injury is a Goodyear K-type-28, manufactured in March, 1944. The wheel has two parts: (1) a split base (2) a combined slide ring and locking ring. Plaintiff's mechanical engineer witness testified that the most probable cause of the separation was the absence of a portion of the gutter hook on the split base which serves to hold the slide ring and locking ring in place when the parts are assembled and the tire is inflated. That witness testified that the missing portion of gutter hook was a manufacturing defect which may have been increased with the usage of the wheel, and he further testified that the lock ring was manufactured .032 of an inch too large. He also testified that the missing gutter hook and oversized ring caused the unsafe assembly which explosively separated while Kuiper was mounting the wheel on the truck. He further testified that a locking device patented to Goodyear in the 1930's could have been placed on K-type wheels to decrease the risk of explosive separation.

Goodyear presented expert testimony that the K-type wheel was not defectively designed and that the wheel involved in Kuiper's accident was not defectively manufactured. Goodyear experts testified that the missing gutter hook was caused by wear and that Kuiper should have recognized the dangerous condition of the wheel and not reassembled it. Such experts testified that the K-type wheel is a safe wheel if properly maintained and assembled according to Goodyear's instructions. A Goodyear witness, tire supervisor for a Georgia express company, testified the K-type wheel is safe if properly maintained and assembled, although he testified that his shop had two accidents involving K-type wheels caused by improper mounting procedures.

Kuiper introduced evidence of other accidents involving multi-piece wheels in general and K-type wheels in particular. One exhibit reveals that as of May 1981, Goodyear had notice of as many as eighty-six other reported accidents involving K-type wheels. No evidence was introduced showing exactly how other accidents occurred, nor the age or condition of the exploding wheels. Plaintiff introduced an inter-office memo written by a manager of field engineering of the motor wheel division of Goodyear in which he stated that parts of the multi-piece rim are inherently dangerous both on the highway and in the shop. He said the parts "sometimes catastrophically cease to serve their intended purpose" and that "the time at which the usefulness ceases is dependent on chance, service procedure, maintenance, proper use of tools, and the use, abuse and misuse of which parts have been subjected during their lifetime." That witness estimated the useful life of the average K-type wheel at twelve to fourteen years. The wheel involved in this case was approximately thirty-five years old.

It is significant to note that Goodyear ceased production of the K-type wheel in 1968, prior to any of the incidents referred to in the trial of the case.

With regard to the Goodyear policy of notifying tire repair shops of the necessity of using care in handling the wheels, Goodyear presented evidence showing that Goodyear had distributed a multitude of charts, posters and advertisements which demonstrated the proper assembly of multi-piece rims. A Goodyear witness testified that the charts, posters and advertisements warn that multi-piece rims can be dangerous if they are not properly assembled or if the parts are worn or abused. Goodyear also had available a film entitled, "You May Not Get a Second Chance" which showed explosive separation of a multi-piece rim. The film was shown at some seminars and was available to independent dealers for a fee. The service manager at Andy's D & K testified there was some of the multi-piece warning posters and literature in the shop, but he did not recall exactly which ones.

In 1977, during the administration of President Carter and subsequent to the problems of the Nixon administration which are later discussed, the Director of the Office of Defects Investigation of the Department of Transportation reopened the K-type wheel investigation. In November, 1979, he transmitted a letter to the Vice President of Goodyear stating:

"By 1973, inclusive, we have identified at least fourty-two accidents and twelve deaths involving the explosive disassembly of K-type rims. All types of multi-piece rims can be subject to a variety of servicing procedures, including the use of warnings, corroded or mismatched parts. When recognizing this, the significantly higher number of accidents found among K-type rims is totally unacceptable and points to an inherent safety defect in these rims."

He requested Goodyear to notify him within seven working days whether they would conduct a safety recall. Goodyear responded to that request stating they would attempt to recall the K-type wheels rims by replacing, without charge those manufactured in 1968 or purchased after January 1, 1971. Wheels manufactured prior to 1968 could be replaced with a new type rim at a discounted price. The recall was unsuccessful. Originally Goodyear offered ten percent of cost discount and later raised that to twenty-five percent.

Following are the issues:

1. Did the trial court err in admitting the following irrelevant and prejudicial evidence in connection with the plaintiff's allegations of political bribery and lying to the Ervin Committee:

(a) the political campaign contributions by Goodyear;

(b) all of plaintiff's references to Watergate;

(c) the DeYoung videotape?

2. Did the trial court err in admitting the following irrelevant and prejudicial evidence of other accidents:

(a) documents mentioning other accidents dissimilar to the plaintiff's accident;

(b) testimony by Youngdahl from a document identified as Phase III;

(c) a video-taped dramatization of other accidents, which was shown to the jury;

(d) the Brandford letter?

3. Did the trial court err in submitting instructions 13, 27 and 41 to the jury:

(a) were instructions 13 and 27 erroneous because they did not include "without substantial change in condition" as an essential element of plaintiff's proof;

(b) did instruction 41 erroneously equate "unjustifiable conduct" with malice?

4. Did the trial court err in submitting the issue of "failure to warn" to the jury?

5. Was the jury verdict influenced by misconduct of the bailiff?

6. Was the jury verdict excessive, based on an...