McLaughlin v. Michelin Tire Corp.

• Decision Date: 12 July 1989
• Docket Number: No. 87-61,87-61
• Citation: 778 P.2d 59
• Parties: 10 UCC Rep.Serv.2d 74, Prod.Liab.Rep. (CCH) P 12,196 Fred McLAUGHLIN, Appellant (Plaintiff), v. MICHELIN TIRE CORP., a New York corporation, and Cobre Tire, a division of Fletcher Enterprises, an Arizona corporation, Appellees (Defendants), Caterpillar Tractor Co., a California corporation; Wyoming Machinery Company, a Utah corporation; Larry Largent; Larry McNabb; Robert Dernovich; Dennis Veeder; and Craig Paisley, Defendants.
• Court: Wyoming Supreme Court

Page 59

778 P.2d 59

10 UCC Rep.Serv.2d 74, Prod.Liab.Rep. (CCH) P 12,196

Fred McLAUGHLIN, Appellant (Plaintiff), v. MICHELIN TIRE CORP., a New York corporation, and Cobre Tire, a division of Fletcher Enterprises, an Arizona corporation, Appellees (Defendants), Caterpillar Tractor Co., a California corporation; Wyoming Machinery Company, a Utah corporation; Larry Largent; Larry McNabb; Robert Dernovich; Dennis Veeder; and Craig Paisley, Defendants.

No. 87-61.

Supreme Court of Wyoming.

July 12, 1989.

Richard H. Honaker, Rock Springs, and W. Keith Goody, Jackson, for appellant.

Carl L. Lathrop, Lathrop & Uchner, P.C., Cheyenne, for appellee, Michelin Tire Corp.

William G. Walton, Cheyenne, for appellee, Cobre Tire.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Ret.

THOMAS, Justice.

In this case, the court is asked to address the several theories for imposing liability upon a manufacturer or seller of heavy equipment tires in the context of summary judgment. A critical question is whether there is any difference in the application of those several theories in the absence of an actual defect in the tires. We also address a collateral theory of independent negligence. The trial court entered a summary judgment in favor of Michelin Tire Corp. (Michelin) and Cobre Tire (Cobre) on the premise that there was no genuine issue of material fact, and these defendants were entitled to judgment as a matter of law. The trial court emphasized the failure of the plaintiff to produce any materials in opposition to the motion for summary judgment that raised an issue of fact as to whether there was any defect in the tires. We affirm the judgment of the district court on the theories of negligent manufacture and design, strict liability, breach of an implied warranty of merchantability, and breach of an express warranty. Because there do exist genuine issues of material fact, we reverse the summary judgment as to the theory of an implied warranty of fitness and as to the theory of independent negligence of Michelin and Cobre in not replacing the tires when they were not performing in a satisfactory manner.

Fred McLaughlin was injured on April 5, 1983, when he lost control of a Caterpillar scraper he was operating at the Jim Bridger Coal Company mine in Sweetwater County. He brought an action to recover damages for his injuries in which he named as defendants Caterpillar Tractor Co., Wyoming Machinery Company, Michelin Tire Corp., Cobre Tire, Larry Largent, Larry McNabb, Robert Dernovich, Dennis Veeder, and Craig Paisley. In his complaint, McLaughlin alleged that his injuries resulted from his loss of control of the scraper due to severe bouncing and vibration caused by Michelin radial tires that had been installed on the machine. As theories of liability of the several defendants, McLaughlin alleged negligence, strict products liability in tort, breach of the implied warranties of fitness and merchantability, and breach of an express warranty. McLaughlin settled his claims against all defendants except Michelin and Cobre, and the trial court ultimately entered summary judgment against McLaughlin and in favor of Michelin and Cobre. The appeal is taken from that summary judgment, which was a final order under the circumstances.

In his brief, McLaughlin states the question to be:

"Do material issues of fact exist in this case which require reversal of the summary judgment entered below with regard to:

"(a) Appellant's negligence claim;

"(b) Appellant's strict liability claim; and

"(c) Appellant's breach of warranty claims?"

Michelin, in its Brief of Appellee, expands on those issues and sets them forth in this way:

"I. Whether appellants have infused new issues for the first time on appeal which were not considered by the court below?

"II. Must plaintiff prove a defect regardless of the theory, be it negligence, strict liability or implied warranty?

"III. Do subjective complaints by operators prove a defect?

"IV. Is the circumstantial evidence test available?

"V. Does the evidence submitted by plaintiff in opposition to the motion for summary judgment invite the jury to speculate and thereby fail to raise a triable issue of fact?

"VI. Did Michelin have a duty to warn?

"VII. Even as to new matter not raised below, does a triable issue remain?"

Cobre invokes a third version of the issues stated as follows:

"Did the court err in determining that there exists no issue of material fact and that defendants (appellees) were entitled to judgment as a matter of law?

"1. May appellant raise new issues on appeal?

"2. Must appellant prove the tires were defective?

"3. Did Cobre have a duty to warn appellant?

"4. Was summary judgment proper?"

From the materials in the record, most of which were relied upon in connection with the motion for summary judgment, the essential facts can be gleaned. In March of 1983, Cobre and Jim Bridger Coal Company (Bridger) entered into a contract for goods and services pursuant to which Cobre agreed to provide Bridger with eighty percent of its requirements for tires and accessories and to furnish on-site tire maintenance personnel. In discussing its tire needs, Bridger, through its agent, Jack Erickson, mentioned to Cobre's agent, Kenneth Moe, that Bridger was interested in trying steel-belted radial tires on their Caterpillar 631-D scrapers to see if that would provide a smoother, more comfortable ride for the scraper operators. Until that time, the scrapers uniformly had been equipped with bias ply tires.

On March 10, 1983, in accordance with the contract, and pursuing Michelin's advice, Cobre delivered to Bridger two 33.25 X 35 Michelin XRDN** steel-belted radial tires and installed them on the front of a Caterpillar 631-D scraper, No. 699. The record discloses that Cobre relied almost exclusively on Michelin's recommendations as to the suitability of any tires that Michelin manufactured for use on particular pieces of equipment and in certain types of terrain. Scraper No. 699 had been equipped with bias ply tires manufactured by another tire company prior to the installation of the Michelin tires. Immediately after installation of these tires, McLaughlin, who usually operated Scraper No. 699, became aware of extreme differences in its operation. McLaughlin complained to his supervisor, Jack Erickson, that the scraper, now equipped with the new Michelin tires, was racked with extreme and violent vibrations, that it would bounce and shake excessively, and that the bouncing did not subside as quickly as it had when the scraper had been equipped with the bias ply tires. Another operator stated that Scraper No. 699 "vibrated more with the new Michelin tires," and that the operators were "getting beat up in the scraper." Still another operator observed that the ride in the scraper was "rough and it vibrated and it wouldn't smooth out." This latter operator further observed that the Michelin tires caused the scraper to bounce more after an initial bounce than it had with the bias ply tires. A fourth operator testified that the Michelin radial tires were "bouncier" than the bias ply tires.

McLaughlin's complaints, and those of the other operators of the scraper, were communicated to Cobre, which in turn passed them on to Michelin. Despite the voluminous complaints that continued over a period of twenty-six days, neither Cobre nor Michelin took the tires off the scraper. Instead, an attempt was made to cure these problems by varying the air pressure in the tires. This did not provide a remedy, and the extreme vibrations and bouncing continued. Late in March of 1983, Cobre and Michelin decided that on April 10, 1983 they would permanently remove the tires. In the intervening period, an experiment was conducted that involved taking the tires from Scraper No. 699 and installing them on another scraper. The same problems of vibration and bounce occurred with the tires on the second scraper. Following the experiment, these tires were re-installed on Scraper No. 699.

In accordance with Cobre's and Michelin's decision, the tires were still on Scraper No. 699 on April 5, 1983. On that date, McLaughlin, who was an experienced heavy equipment operator, was making a dirt haul pass over a ditch. Straddling the ditch while making such dirt haul passes to dump overburden, in the manner that McLaughlin did on the day of his injuries, was a "very accepted" practice at the coal mine, and "[t]here is no risk involved" with such a procedure. During one such pass, the scraper suddenly went into a violent series of vibrations in the course of which McLaughlin lost control of the scraper and was thrown through the side window of the cab. McLaughlin sustained severe lacerations to his face, which ultimately cost him his right eye, and compression fractures to the vertebrae in his back that resulted in permanent disability.

The parties dispute what actually occurred just prior to the accident to cause the scraper to vibrate so severely. McLaughlin's co-workers stated in substance that they believed something was wrong with the tires. One related:

" * * * [H]e was bouncing * * *. I seen the tires on six-nine-nine going flat. When he was running over this dump area, they were going flat, and I was going to catch him. * * * I was trying to flash him over. I tried to stop him, but he was ahead of me."

The same co-worker went on to say that "both wheels were coming off the ground," that the tires were flattening to such an extent that the distance from the rim to the bottom of the tire was only about six inches, and that when the tires would spring back, the distance from the rim to the bottom of the tire would be about two and one-half feet. Another co-worker observed the actual injury occur, and he reported in his deposition:

" * * * I could see the scraper bouncing real hard. I saw it bounce three or four times * * *. I saw him go sideways * * *. Then I saw him come back and saw his head come...