McHugh v. Carlton
| Decision Date | 31 January 1974 |
| Docket Number | Civ. A. No. 73-1567. |
| Citation | 369 F. Supp. 1271 |
| Court | U.S. District Court — District of South Carolina |
| Parties | James J. McHUGH, Plaintiff, v. Rebecca Ann CARLTON et al., Defendants. |
Ellis B. Drew, Jr., Anderson, S. C., for James J. McHugh, the plaintiff.
David L. Freeman, of Wyche, Burgess, Freeman & Parham, Greenville, S. C., for Rebecca Ann Carlton and William Carlton.
William M. Grant, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S. C., for Joe Stevenson.
ON DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
Defendant Simister, doing business as Sonny's Tire & Recapping, is a manufacturer of recapped tires. Defendant Stevenson operates a service station which performs mechanical repairs to automobiles and sells gas (when available), oil, and TBA1 products. Defendants, William and Rebecca Ann Carlton, are the owner and operator, respectively of an automobile involved in a collision with plaintiff's vehicle on U. S. Interstate No. 75 in Cook County, Georgia, on November 28, 1971.
On November 26, 1973, plaintiff filed a complaint against all four defendants. Plaintiff, at the time of the accident, was a resident of Georgia but now is a resident of Michigan. All defendants are residents of South Carolina. Jurisdiction of the court is based on diversity of citizenship.2
The complaint charges negligence on the part of the Carlton defendants, breach of implied warranty of merchantability under the South Carolina Uniform Commercial Code § 10.2-314 and breach of implied warranty of fitness for a particular purpose under South Carolina Uniform Commercial Code § 10.2-315 on the part of defendants Stevenson and Simister, and negligent manufacture of the product on the part of defendant Simister.
The cause of action based on the negligence charge against the Carlton defendants arose in Georgia and therefore Georgia law should apply. The sale of the allegedly defective product occurred in South Carolina and therefore South Carolina law should apply to the charges against defendants Stevenson and Simister.
The Carlton defendants filed a crossclaim under Federal Rule of Civil Procedure 13(g)3 against defendants Stevenson and Simister on the same charges contained in plaintiff's complaint.
Defendant Stevenson now moves this court to dismiss him as a party from this action by striking the complaint and cross-claim against him under Rule 12(b)(6)4 for failure to state a claim upon which relief can be granted.
1. Is a recapped tire an inherently dangerous product?
2. Is privity of contract necessary under South Carolina Uniform Commercial Code § 10.2-318 for a user in the purchaser's family to maintain an action for breach of implied warranty against a defendant retailer for damages caused by a latent defect in the product sold?
3. Is privity of contract necessary under South Carolina common law for an innocent third party to maintain an action for breach of implied warranty against a defendant retailer for damages caused by a latent defect in the product sold?
4. Is defendant tire retailer liable on an implied warranty of fitness for a particular purpose under the South Carolina Uniform Commercial Code § 10.2-315 for damages caused to the purchaser, a user in the purchaser's family, or an innocent third party, by a latent defect in the recapped tire sold?
5. Is defendant tire retailer liable on an implied warranty of merchantability under South Carolina Uniform Commercial Code § 10.2-314 for damages caused to a purchaser, a user in the purchaser's family, or an innocent third party, by a latent defect in the recapped tire sold?
6. Are defendants, retailer and tire manufacturer, strictly liable in tort for damages caused by a latent defect in the recapped tire sold?
INHERENTLY DANGEROUS PRODUCT
Initially, it is important for a determination of the subsequent issues to decide whether a recapped tire is an inherently dangerous product. The question seems to be one of first impression in the United States.
Factors applicable in determining whether a product is imminently dangerous are set forth in Annot., 74 A.L.R.2d 1165 (1960):
The courts are in substantial agreement that a product is imminently dangerous, . . . if, although it is not dangerous by its nature and is safe to be used for the purpose intended when properly constructed, it contains a defect which renders it dangerous when applied to its intended use in the usual and customary manner.
Odom v. Ford Motor Co., 230 S.C. 320, 95 S.E.2d 601 (1956), is one of many cases cited as express or clearly implied authority to this effect.
New or used automobile tires have been either found or implied to be imminently or inherently dangerous in all the following cases: McDevitt v. Standard Oil Co., 391 F.2d 364, 368-370 (5th Cir. 1968); B. F. Goodrich Co. v. Hammond, 269 F.2d 501 (10th Cir. 1959); Hacker v. Rector, 250 F.Supp. 300, 301-302 (W. D.Mo.1966); Hart v. Goodyear Tire & Rubber Co., 214 F.Supp. 817 (N.D.Ind. 1963); Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 71 Cal.Rptr. 306, 314-315, 319-321 (1968); Casetta v. United States Rubber Co., 260 Cal. App.2d 792, 67 Cal.Rptr. 645, 650, 660 (1968); Farr v. Armstrong Rubber Co., 288 Minn. 83, 179 N.W.2d 64, 68-70 (1970); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 596-598, 601 (1968); Malinak v. Firestone Tire & Rubber Co., 436 S.W.2d 210, 214 (Tex. Civ.App.1968).
A fortiori, a recapped tire, by its very nature, is inherently dangerous or imminently dangerous when it has a latent defect. The court takes judicial notice that a "recapped" tire is simply an old bald tire which has a new strip of tread wrapped around it and fastened to the old tire by heat treatment. Hence, the bald tire is "recapped". The tire is thereafter coated so as to look like new. Such tires have weak sidewalls because of their prior life and a tendency for the new tread to unwrap if not properly fastened to the old tire body.
One only has to drive along any major highway to see long strips of rubber tread that have blown off a recapped tire of a tractor-trailer. Tractor-trailers use such tires in double sets. Thus, when a tire blows the remaining tire in the double set will carry the weight load until the driver pulls his rig off the highway to change tires. A passenger vehicle does not have double sets of tires and therefore does not have this safety feature.
As to plaintiff purchaser injured by the allegedly defective product, there is privity of contract with defendant retailer. However, the defense of lack of privity of contract is asserted by defendant retailer against the cross-claim of defendant, Rebecca Ann Carlton, the operator of the automobile and, hence, the user of the allegedly defective tire at the time of the accident.
As to this defense, 2A Code of Laws of South Carolina, § 10.2-318 (1966), provides:
Third party beneficiaries of warranties express or implied.—A seller's warranty whether express or implied extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty. A seller may not exclude or limit the operation of this section.
Comment 2, thereto, states:
The purpose of this section is to give the buyer's family, household and guests the benefit of the same warranty implied in this case which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to "privity." . . . Implicit in the section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.
It is clear from this comment that it is the intent of the South Carolina legislature to abolish the necessity that privity of contract exist between a seller and a user in the purchaser's family before the injured user can bring an action for breach of implied warranty against the seller.
The defense of lack of privity of contract is asserted by defendant retailer against the claim of plaintiff, an innocent third party injured in the accident caused by the allegedly defective tire. Comment 3 to § 10.2-318 states:
This section expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain.
For an answer to the defense in question, the court must look to the common law of South Carolina as expressed by the state supreme court.
Products liability cases dealing with the issue of privity of contract in South Carolina appear to be divided into two lines. One line of cases deals with the question of privity of contract when the product is one which is inherently or imminently dangerous. Where a product of that nature is involved, the South Carolina Supreme Court has understandably refused to require privity of contract of all those who are foreseeably endangered by its use. The South Carolina Reporter's Comments to § 10.2-318 are helpful here.
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