Marchant v. Dayton Tire & Rubber Co., s. 87-1487

• Decision Date: 07 October 1987
• Docket Number: 87-1634,Nos. 87-1487,s. 87-1487
• Citation: 836 F.2d 695
• Parties: , Prod.Liab.Rep.(CCH)P 11,646 John S. MARCHANT, Plaintiff, Appellant, v. The DAYTON TIRE & RUBBER CO., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 695

836 F.2d 695

56 USLW 2436, Prod.Liab.Rep.(CCH)P 11,646

John S. MARCHANT, Plaintiff, Appellant, v. The DAYTON TIRE & RUBBER CO., Defendant, Appellee.

Nos. 87-1487, 87-1634.

United States Court of Appeals First Circuit.

Heard Oct. 7, 1987.

Decided Jan. 6, 1988.

Joseph T. Papetti with whom Stephen M. Ouellette, Orlando & Associates, Gloucester Mass., and Peter A. Donovan, Boston, Mass., were on brief, for plaintiff, appellant.

Francis H. Fox with whom David A. Schecker and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

COFFIN, Circuit Judge.

Plaintiff-Appellant, John Marchant, was injured when a tire manufactured by the defendant-appellee, Dayton Tire & Rubber, exploded while plaintiff was mounting it onto his truck. Following a jury trial at which defendant was found liable for damages for a breach of warranty on the tire, the trial judge entered a judgment for the defendant notwithstanding the verdict. Plaintiff appeals the judgment n.o.v.

I.

On April 28, 1982, plaintiff was mounting a tire manufactured by defendant on a light truck wheel rim. Plaintiff had gotten the tire, which seemed to be in excellent condition, out of storage at his place of employment, J & P Trucking Co. He was mounting the second of two tires when the explosion occurred. Plaintiff had been mounting the actual rubber tire onto the wheel of the truck. He had learned to perform this procedure during previous employment in garages, and had performed this operation many times previously.

The trial judge described the operative facts as follows:

The process, oversimplifying, involves lubricating the deflated tire, prying it into position within the "well" of the wheel, and applying air pressure to force the wire "bead" of the tire outward, over an interior "hump," until it is seated firmly along the outer rim of the wheel. On this occasion plaintiff had just completed this process and was about to place the tire on his truck, when he discovered an air leak. He removed the tire, repaired the leak, and started again. He placed the tire on the floor, and while he was standing over it and reapplying air, the tire exploded. Subsequent examination of the tire showed that the bead had been broken, presumably during the second mounting, although it might have been damaged during the first. Defendant's witness testified that, if the bead gets "hung up" during the mounting process, too much air pressure may break it. It is industry-wide practice to advise against exceeding 40 lbs. per square inch (p.s.i.). Plaintiff estimated that he inflated the tire to no more than 55 p.s.i. on the first mounting of the tire, and to a lower pressure on the second.

Plaintiff claims that the accident resulted from improper design of the bead. The bead, embedded in the rubber, consists of a number of circles of several wires that ultimately overlap at their ends. Plaintiff's expert testified that there should have been no overlap. Defendant conceded that if excessive air pressure during mounting damaged the bead, it was most likely to break at an inside end of the overlap. However, its position was that the likelihood of beads being damaged was extremely remote, so remote that all domestic manufacturers, producing millions of tires a year, uniformly made their beads in this manner. Plaintiff's expert conceded that this was, and still is, the domestic practice, and stated he had criticized it "since the late '60's," and complained to the Department of Transportation in 1982. He pointed to a French manufacturer, Michelin, that uses many turns of a single wire, with the ends socket-welded to avoid the overlap. There was no evidence that even Michelin had adopted this procedure in 1973, the year of the present tire. At the same time, there would seem nothing so mechanically difficult about the process that it would not have been feasible earlier.

Marchant v. Dayton Tire & Rubber Co., No. 85-1122-C-A, slip op. at 2-4 (D.Mass. May 6, 1987). There was further testimony that the plaintiff had never noticed any warning concerning the maximum air pressure for safe mounting of defendant's tire, but that he assumed from experience that no more than about 65 p.s.i. should be used.

The jury found for the plaintiff following a three-day trial, and awarded him $600,000 in damages. The district court granted the defendant's motion for judgment notwithstanding the verdict. It found that the plaintiff had failed to establish a breach of warranty ¹ either on a theory of design deficiency or on the alternative theory of failure to warn. The district court also conditionally ordered a new trial, in the event that the j.n.o.v. was reversed on appeal. The court found that no reasonable jury, upon proper argument, would have rejected the affirmative defense that plaintiff's own unreasonable behavior was the proximate cause of his injury. The judge added that his decision to order a new trial was influenced by plaintiff's counsel's "improper closing" to the jury. Slip op. at 10-12. We address each of these issues in turn, beginning with the district court's judgment j.n.o.v. on the breach of warranty cause of action.

II.

The Massachusetts Legislature has transformed warranty liability "into a remedy intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions." Back v. Wickes, 375 Mass. 633, 639, 378 N.E.2d 964 (1978). Massachusetts law of warranty is thus now "congruent in nearly all respects with the principles expressed in Restatement (Second) of Torts Sec. 402A (1965)." Id. at 640, 378 N.E.2d 964.

This variant of "strict liability" offers two methods of establishing liability: proving a design defect, and demonstrating a failure to warn adequately of a dangerous condition.

A.

A manufacturer has the duty to design products "so that they are reasonably fit for the purposes for which they are intended." Smith v. Ariens Co., 375 Mass. 620, 624, 377 N.E.2d 954 (1978). A product is "reasonably fit" for its purposes if the design prevents the "reasonably forseeable risks attending the product's use in that setting." Back v. Wickes, 375 Mass. at 641, 378 N.E.2d 964. There is no real question in this case that plaintiff's use was forseeable.

This does not, however, end the inquiry. The "fitness" of the product "is a question of degree, depending largely, although not exclusively, on reasonable consumer expectations." Id. at 642, 378 N.E.2d 964. Even where the product design creates a risk of foreseeable harm, "[t]he question is whether this risk was 'unreasonable.' " Raney v. Honeywell, Inc., 540 F.2d 932, 935 (8th Cir.1976). The Supreme Judicial Court of Massachusetts has explained how this determination should be approached:

In deciding this issue, the jury must weigh competing factors much as they would in determining the fault of the defendant in a negligence case. The inquiry focuses on product characteristics rather than on the defendant's conduct, but the nature of the decision is essentially the same. In evaluating the adequacy of a product's design, the jury should consider, among other factors, " the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design."

Back v. Wickes, 375 Mass. at 642, 378 N.E.2d 964 (quoting Barker v. Lull Eng'r Co., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)) (citations omitted). In balancing these "pertinent factors," the jury must make a judgment as to the "social acceptability of the design." Back, 375 Mass. at 642, 378 N.E.2d 964.

In the present case, plaintiff offered evidence to show the gravity and likelihood of danger posed by the design. Plaintiff also introduced the current Michelin tire in evidence, to show the "feasibility" of an alternative design at the time of manufacture. The district judge acknowledged that the Michelin design was not "so mechanically difficult ... that it would not have been feasible earlier." Slip op. at 4. The plaintiff's expert testified that the Michelin design was a safer alternative. Defendants concentrated on showing that the Michelin design would not have decreased the chances of explosion.

Neither party offered any evidence as to the costs and consequences of the alternative design, the "fourth" and "fifth" factors in the Back v. Wickes analysis. According to both the district court and the defendant, this omission of evidence as to the "trade-offs" is fatal to the plaintiff's case. The defendant introduced testimony that no domestic manufacturer was using the alternative design at the time the tire in question was built. The court reasoned that the plaintiff then had the burden to offer evidence "of the cost of the Michelin structure, or how much stronger the Michelin design would be, or whether there were any other performance or safety characteristics that would favor or disfavor its use. One or more of these factors presumably was of moment, in light of the fact that no domestic manufacturer was using it." Slip op. at 4-5. Defendant's expert did concede that the vast majority of bead failures occurred at the overlap, and plaintiff's expert testified that he had never seen such a failure on a Michelin "non-overlapped" tire. The judge insisted that this alone did not establish a case for liability, without further evidence proving that the "trade-offs" made the alternative design more reasonable. In essence, the court insisted that the plaintiff prove to the jury the cost/benefit efficiency of the alternative design. Defendant also relied, both in its brief and at oral argument, on the proposition that the plaintiff has the...