Leaf v. Goodyear Tire & Rubber Co.

• Decision Date: 24 March 1999
• Docket Number: No. 97-950,97-950
• Citation: 590 N.W.2d 525
• Parties: Prod.Liab.Rep. (CCH) P 15,496 Christopher M. LEAF, Appellee, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 525

590 N.W.2d 525

Prod.Liab.Rep. (CCH) P 15,496

Christopher M. LEAF, Appellee, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant.

No. 97-950.

Supreme Court of Iowa.

March 24, 1999.

L.W. Rosebrook of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.

Richard H. Doyle and Robert G. Tully of Galligan, Tully, Doyle & Reid, P.C., Des Moines, and Dorothy L. Dakin of Dakin Law Firm, Boone, for appellee.

Considered en banc.

LARSON, Justice.

Christopher Leaf sued the Goodyear Tire & Rubber Company for personal injuries based on strict liability, and Goodyear appealed from the resulting judgment. We affirm.

I. Facts and Proceedings.

We recite the facts as a jury could reasonably have found them. Leaf, who was an employee of Whyte's Tire Center, was injured when a Goodyear tire ruptured while Leaf was working on it. The original tread on Goodyear's tire had worn out, and it was retreaded at Jack's OK Tire Service and sent to Whyte's Tire Center. Leaf removed the old tire from its rim and replaced it with the retreaded Goodyear tire. Under normal circumstances, Leaf would then have inflated the tire in a safety cage as required by federal safety rules. See 29 C.F.R. § 1910.177 (1992). In this case, the bead on the retreaded tire would not seal on the rim, making inflation impossible without the use of a "bead blaster." This is a device that forces a rush of air between the tire and rim, causing the tire to expand and seal against the rim. The problem is a bead blaster cannot be used on a tire while the tire is in a safety cage, and OSHA recognizes an exception to the safety-cage requirement in such a case. See 29 C.F.R. § 1910.177(f)(5). When a bead blaster is used, the accepted practice is to partially inflate the tire with an air hose after the bead blaster seals the tire on the rim, then to complete the inflation process after the tire is placed in the cage.

In this case, Leaf left an air hose attached to the tire, which was still outside the cage, while he looked for a valve core. Air continued to enter the tire, which ruptured before Leaf could put it in the cage. Leaf sued Goodyear and Jack's OK Tire Service. Jack's settled prior to trial, and the case proceeded against Goodyear. The jury awarded Leaf $274,225.90 on his strict-liability claim. The court denied Goodyear's motions for judgment NOV and new trial, and this appeal followed.

II. The Issues.

Goodyear raises five issues on appeal: (1) the court's refusal to rule as a matter of law that Goodyear's warning rendered the tire safe; (2) as a matter of law, the tire had been misused, relieving Goodyear of liability; (3) the court erred in admitting the testimony of Leaf's expert; (4) the court's instruction on "fault" was defective; and (5) the court erred in instructing that violation of an OSHA rule is evidence of negligence but not negligence per se.

We review a ruling on a motion for directed verdict for errors of law, and our review is limited to the grounds raised in the motion. Pierce v. Staley, 587 N.W.2d 484, 485 (Iowa 1998). In determining whether the trial court correctly found sufficient evidence to submit a claim to the jury, we view the evidence in the light most favorable to the nonmoving party. Financial Mktg. Servs., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 460 (Iowa 1999). A motion for judgment notwithstanding the verdict (NOV) must stand or fall on the grounds raised in the motion for directed verdict. Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998).

III. The Strict-Liability Claim.

The plaintiff's strict-liability claim is based on section 402A of the Restatement (Second) of Torts, which we adopted in Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970). Under this rule,

(1) [o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A, at 347-48 (1965).

A. The warning issue. Goodyear contends that comment j to section 402A relieves Goodyear of liability as a matter of law. That comment states, in part:

In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.

....

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

Restatement (Second) of Torts § 402A cmt. j, at 353 (1965) (emphasis added). In this case, Goodyear had stamped a warning on the tire that stated:

Serious Injury May Result From

Tire Failure Due to Underinflation/Overloading/Misapplication--

Follow Tire Placard Instructions in Vehicle

Check Inflation Pressure Frequently with Accurate Gauge

Explosion of Tire/Rim Assembly Due to Improper Mounting--Only Specifically Trained Persons Should Mount Tires

When Mounting Tire, Use Safety Cage and Clip-On Extension Air Hose to Inflate.

(Emphasis added.)

Goodyear argues that its warning about using a safety cage would have avoided the injury if Leaf had heeded the warning. Apparently believing the comment j defense only applied in a failure-to-warn claim, the court submitted it under Leaf's negligence claim but refused to do so in connection with the strict-liability claim. See Olson v. Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994) (failure to warn may be submitted in negligence claim but not in both negligence and strict-liability claim). The issue is whether the court should have submitted Goodyear's comment j defense in connection with Leaf's strict-liability claim. Comment j has been held inapplicable in a defective-design--as opposed to a failure-to-warn--claim. See Moulton v. Rival Co., 116 F.3d 22, 28 (1st Cir.1997). See generally, Annotation, Benjamin J. Jones, "Presumption or Inference in Products Liability Action Based on Failure to Warn, That User of Product Would Have Heeded an Adequate Warning Had One Been Given," 38 A.L.R.5th 683, 701-11 (1996) (discussing comment j and comparable rules under state cases).

The current status of comment j is uncertain. It has been deleted from the third Restatement of Torts, and it has been said that courts have "overwhelmingly rejected Comment j" because "warnings are an imperfect means to remedy a product defect." Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 336 (Tex.1998). A comment to the Restatement (Third) of Torts explains the rationale for rejecting comment j:

We decline ... to adopt any rule that permits a manufacturer or designer to discharge its total responsibility to workers by simply warning of the dangers of a product. Whether or not adequate warnings are given is a factor to be considered on the issue of negligence, but warnings cannot absolve the manufacturer or designer of all responsibility for the safety of the product.

Restatement (Third) of Torts, Products Liability § 2 cmt. 1 (1998). A reporter's note to the third Restatement characterizes comment j as "unfortunate language" that "has elicited heavy criticism from a host of commentators." Id. Rptr. Notes (citing Howard Latin, Good Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L.Rev. 1193, 1206-07 (1994)).

While we have doubts that Goodyear's comment j argument would apply to Leaf's strict-liability claim, we do not decide the issue. Goodyear did not raise it in its motion for directed verdict, and the district court correctly ruled in its judgment NOV order that the issue had been waived. See Schlegel, 585 N.W.2d at 221.

B. The claim of misuse. Goodyear argues that Leaf did not meet the requirements of section 402A because he failed to show that the product was expected to and did reach the plaintiff without substantial change in condition. See Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 918 (Iowa 1990); Restatement (Second) of Torts § 402A(1)(b), at 348. Ordinarily, if mishandling or other alterations beyond the manufacturer's control render a product defective, the manufacturer is not liable. Fell, 457 N.W.2d at 918 (citing Restatement (Second) of Torts § 402A cmt. g, at 351 (1965)). However, a manufacturer will remain liable for an altered product if it is reasonably foreseeable that the alteration would be made and the alteration does not unforeseeably render the product unsafe. Aller v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830, 838 (Iowa 1978); see also Crow v. Manitex, Inc., 550 N.W.2d 175, 180 (Iowa App.1996); Smith v. Air Feeds, Inc., 519 N.W.2d 827, 831 (Iowa App.1994); Hardy v. Britt-Tech Corp., 378 N.W.2d 307, 309 (Iowa App.1985). To support this argument Goodyear expressly raises one claim of abuse and suggests a second. We discuss both "claims."

1. Alleged abuse of tire by prior owner. Goodyear claims the tire showed signs of having been run flat or underinflated, and this constitutes misuse. Leaf says the issue is not whether there was misuse by running it flat or underinflated but whether such misuse was reasonably foreseeable to Goodyear. This foreseeability inquiry should rarely be determined as a matter of law. Smith, 519 N.W.2d at 831.

The court's instruction stated:

The requirement that the tire be free from defects at the time it left Goodyear's control includes the requirement that necessary precautions be taken to keep the...