LeBouef v. Goodyear Tire & Rubber Co.

• Citation: 623 F.2d 985
• Decision Date: 11 August 1980
• Docket Number: No. 78-2553,78-2553
• Parties: Lillie Mae LeBOUEF et al., Plaintiffs, v. The GOODYEAR TIRE & RUBBER COMPANY et al., Defendants. TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 985

623 F.2d 985

Lillie Mae LeBOUEF et al., Plaintiffs, v. The GOODYEAR TIRE & RUBBER COMPANY et al., Defendants.

TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 78-2553.

United States Court of Appeals, Fifth Circuit.

Aug. 11, 1980.

James E. Diaz, Lafayette, La., for defendant-appellant.

L. H. Olivier, Nicholls Pugh, Jr., Lafayette, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before JONES, GEE and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

In the early morning hours of June 6, 1976, Shelby Leleux was killed and his passenger, Floyd Dugas, was seriously injured when the Mercury Cougar driven by Leleux veered off the Louisiana back road on which it had been travelling at over 100 miles per hour and crashed into a cement culvert. The accident occurred when the tread separated from the body of the Cougar's left rear tire. Dugas and Leleux's mother, Lillie Mae Duhon, brought this products liability action against Goodyear Tire & Rubber Company, the manufacturer of the tire, and Ford Motor Company, the maker of the automobile, alleging that the accident was attributable to the products' defective designs and the failure of the defendants to warn of the danger of tread separation at high speeds. The district court, sitting without a jury, agreed and held defendants liable jointly and in solido. 451 F.Supp. 253 (W.D.La. 1978). Ford Motor Company appeals, ¹ arguing that: (1) it had no duty to warn of or otherwise to guard against the danger of tread separation in situations like that involved here; (2) the district court erred in holding it liable as manufacturer of the tire; and (3) the court should have held Leleux and Dugas to be barred from recovery on the basis of their own conduct in connection with the accident. We affirm.

FACTS

In January 1976, Shelby Leleux purchased a new, 1976 Mercury Cougar equipped with a 460 cubic-inch, 425 horsepower engine, and with Goodyear HR78-15 Custom Polysteel Radial tires. The tires were standard equipment for the Cougar, despite the fact that they had actually been designed and tested by Goodyear only for a maximum safe operating speed of around 85 miles per hour, ² while the Cougar was designed with a capability of attaining speeds greater than 100 miles per hour. Despite the disparity in design capabilities (and at least Ford's knowledge of this), the only "warning" associated with the use of the tires at high speeds provided by either party, aside from inflation instructions, was After the car had been driven about 1,300 miles, the left rear and right front tires developed a low-speed wobble. Because the tires were separately warranted by Goodyear, Leleux arranged to have these tires replaced by a Goodyear dealer, who moved the car's left front tire to the left rear and installed two new tires on the front.

a statement in the Cougar owner's manual that "(c)ontinuous driving over 90 mph requires using high-speed-capability tires"; the manual did not state whether the tires in question were or were not of high speed caliber. Def. exh. FD-1, p. 70.

At about 5:00 a.m. on June 6, 1976, Leleux and Dugas, both of whom had been drinking since 9:00 p.m. on the preceding evening, left Kaplan, Louisiana in Leleux's Cougar for a dance in Riceville, about 15 miles away. The road between these towns is a paved, relatively straight, two-way thoroughfare. One mile outside of Kaplan, Leleux accelerated to a speed of at least 100 to 105 miles per hour and maintained that pace. ³ About six minutes later, the tread separated from the carcass of the left rear tire, which had at that point been driven 4,867 miles. The car veered to the left side of the road and remained on the pavement for 219 feet before fading onto the gravel shoulder. Leleux held the car on the shoulder for 67 feet until it left the roadbed, dropping four feet to a field below. From there the car travelled 225 feet and struck a cement culvert, killing Leleux and seriously injuring Dugas. A blood alcohol test revealed that Leleux's blood contained .18% alcohol, well above established standards for intoxication. The separation of tread from the left rear tire was determined later not to have been caused by road hazards or neglected cuts in the tread.

In the ensuing consolidated wrongful death and personal injury actions, the district court, while finding that the tire had not been defectively constructed, held that the use of this tire on the Cougar in the absence of an adequate warning of the danger of tread separation at the high speeds at which both defendants should reasonably have foreseen their products would be used, rendered the car and the tire unreasonably dangerous. The court further found that, while Leleux's excessive speed was a contributing cause of the accident, his intoxication was not. The court rejected this contributory negligence as a bar to recovery and held, finally, that neither plaintiff had voluntarily assumed the risk of the tragedy that befell them.

SCOPE OF DUTY

Louisiana products liability law, which controls this diversity case, prescribes that the maker of a product may be held liable to one injured due to a defect in that product whether in design or manufacture, or which results from the lack of adequate warning that renders the product "unreasonably dangerous to normal use." Chappuis v. Sears, Roebuck & Co., 358 So.2d 926, 929 (La. 1978) (emphasis added), quoting Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754, 755 (1971). Ford contends that the circumstances under which product failure occurred in this case constituted a misuse, outside the "normal use" of the Cougar and the tires. Therefore, Ford argues that it had no duty to warn or otherwise to guard against the dangers involved here, and that it, consequently, should not have been held liable for injuries flowing from product failure in that setting.

The only aspect of the accident that raises the question of misuse versus normal use is the excessive speed of the Cougar. There is no evidence that the hazards of speed were exacerbated by poor highway pavement or other road hazards, or that the car or tires had otherwise been subjected to abuse on the night of the accident or before. Moreover, aside from the fact that it may have impaired his judgment in deciding Certainly the operation of the Cougar in excess of 100 miles per hour was not "normal" in the sense of being a routine or intended use. "Normal use," however, is a term of art in the parlance of Louisiana products liability law, delineating the scope of a manufacturer's duty and consequent liability; it encompasses all reasonably foreseeable uses of a product. See, e.g., Rey v. Cuccia, 298 So.2d 840, 844 n.2, 845 (La. 1974) (duty to warn of "possible hazard" known to manufacturer); Amco Underwriters of the Audubon Insurance Co. v. American Radiator & Standard Corp., 329 So.2d 501, 504 (La.App. 1976) (duty to warn of dangers even from improper use of otherwise non-defective product). See also, e.g., Jones v. Menard, 559 F.2d 1282, 1285 n.4 (5th Cir. 1977) (dictum, construing Louisiana law to the effect that "(i)n inadequate warning cases misuse means that the seller had no duty to warn against unforeseeable uses of its products, while in design cases misuse means that the manufacturer had no duty to design a product so as to prevent injuries arising from unforeseeable uses of that product"). The sports car involved here was marketed with an intended and recognized appeal to youthful drivers. The 425 horsepower engine with which Ford had equipped it provided a capability of speeds over 100 miles per hour, and the car's allure, no doubt exploited in its marketing, lay in no small measure in this power and potential speed. It was not simply foreseeable, but was to be readily expected, that the Cougar would, on occasion, be driven in excess of the 85 mile per hour proven maximum safe operating speed of its Goodyear tires. Consequently, Ford cannot, on the basis of abnormal use, escape its duty either to provide an adequate warning of the specific danger of tread separation at such high speeds or to ameliorate the danger in some other way. ⁴ See Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co., 532 F.2d 501, 503-04 (5th Cir. 1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 111, 51 L.Ed.2d 542 (1977) (duty to warn if product, though not otherwise defective, may not be safely used in certain foreseeable ways).

to drive at an excessive speed, there is no indication that Leleux's intoxication constituted an independent element of misuse pertinent to this case.

Ford contends, further, that it had no duty to warn that is, that the car was not "unreasonably dangerous" without a warning even if the Cougar was in "normal use" at the time of the accident, since the danger involved was obvious or at least should have been known to Leleux, who dabbled in amateur stock car racing. American Insurance Co. v. Duo Fast Dixie, Inc., 367 So.2d 415, 417 (La.App. 1979) (no duty to warn of obvious danger from improper electrical connection); Foster v. Marshall, 341 So.2d 1354, 1362 (La.App.), writ ref'd, 343 So.2d 1067 (La. 1977). Accord, Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co., 532 F.2d at 504 (no duty to warn sophisticated purchasers of dangers of which they should be aware). See Chappuis v. Sears, Roebuck & Co., 358 So.2d at 930 (duty to warn "when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally"). Though Ford correctly states the Louisiana law on this point, the proof in this case does not support the application of that principle. While the hazards generally of high-speed driving would have been as obvious to Leleux as to any other driver, the particular risk in question here vis., that the tread would separate from a tire and the danger that this...