Rastelli v. Goodyear Tire & Rubber Co.

• Decision Date: 31 March 1992
• Court: New York Court of Appeals Court of Appeals
• Parties: , 591 N.E.2d 222, 60 USLW 2668, Prod.Liab.Rep. (CCH) P 13,160 Francene RASTELLI, as Administratrix of the Estate of John A. Wunderlich, Deceased, Respondent, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant, et al., Defendants.

Page 373

582 N.Y.S.2d 373

79 N.Y.2d 289, 591 N.E.2d 222, 60 USLW 2668,

Prod.Liab.Rep. (CCH) P 13,160

Francene RASTELLI, as Administratrix of the Estate of John A. Wunderlich, Deceased, Respondent, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant, et al., Defendants.

Court of Appeals of New York.

March 31, 1992.

[79 N.Y.2d 290] Alan D. Kaplan, James A. Gallagher, Jr. and Edward M. O'Brien, Mineola, for appellant.

[79 N.Y.2d 291] Susan Corcoran, for respondent.

[79 N.Y.2d 292] [591 N.E.2d 223] John Lawler Hash, Winston-Salem, N.C., of the North Carolina Bar, admitted pro hac vice, and Michael C. Hayer, of the Washington, D.C., Bar, admitted pro hac vice, for Ass'n of Trial Lawyers of America, amicus curiae.

Sheila L. Birnbaum, Barbara Wrubel and Douglas W. Dunham, New York City, for Product Liability Advisory Council, Inc., amicus curiae.

[79 N.Y.2d 293] Daniel J. Popeo, Richard K. Willard, Thomas M. Barba, Thomas M. Koutsky and Paul D. Kamenar, of the Washington, D.C., Bar, admitted pro hac vice, for Washington Legal Foundation, amicus curiae.

OPINION OF THE COURT

HANCOCK, Judge.

Plaintiff's decedent was killed while inflating a truck tire, manufactured by Goodyear, when the multipiece tire rim, not manufactured by Goodyear, separated explosively. The issues are whether (1) Goodyear may be subject to concerted action liability under the alleged facts in this product liability action and (2) Goodyear has a duty to warn against its nondefective tire being used with an allegedly defective tire rim manufactured by others. For the reasons stated below, we conclude that plaintiff's claims under both theories of liability should be dismissed. Accordingly, we reverse the order of the Appellate Division.

I

In June 1984, John Wunderlich was inflating a tire on his employer's 1970 Chevrolet dump truck when the multipiece tire rim, upon which the tire was mounted, violently flew apart. A piece of the rim struck Wunderlich in the head, killing him instantly.

Multipiece rims are not a uniform product. The tire, manufactured by defendant Goodyear Tire & Rubber Company, was compatible for use on some but not all multipiece rim assemblies. ¹ The particular rim assembly involved in this case was an RH5 degree (RH5) model, consisting of a side or locking ring marked "Firestone, 20 X 6.0, RH5" and a rim base marked "K-H" for the Kelsey-Hayes Company. The Appellate Division concluded that Goodyear neither manufactured nor sold the subject rim or its parts (165 A.D.2d 111, 114, 565 N.Y.S.2d 889). Moreover, Goodyear's proof that it never has been a manufacturer or marketer of the RH5 rim assembly model or its component parts is not disputed by anything in the record.

In August 1985, plaintiff Francene Rastelli, as administratrix of the decedent's estate, brought suit for decedent's pain and suffering and wrongful death against Goodyear, Firestone Tire and Rubber Company, Kelsey-Hayes Company, and the Budd Company (the manufacturers of substantially all multipiece tire rims produced in the United States). The complaint sets forth causes of action based upon four theories of liability: (1) negligence, (2) strict products liability, (3) breach of warranty, and (4) concerted action. Goodyear moved for summary judgment based upon proof that it had not designed, manufactured or marketed any part of the rim involved in decedent's accident. Supreme Court denied Goodyear's motion, with leave to renew after the completion of discovery. The Appellate Division modified by reversing to the extent of granting Goodyear summary judgment on the breach of warranty claims, and otherwise affirmed the denial of summary judgment on the concerted action, strict products liability and negligence claims.

The Appellate Division held that plaintiff's failure to counter the proof that Goodyear did not manufacture or market any part of the rim defeated her breach of warranty claims. However, it concluded that plaintiff's submissions for her concerted action claims "were sufficient to demonstrate that further discovery may disclose an express agreement or tacit understanding among Goodyear * * * and the other major manufacturers of multipiece truck tire rims to prevent public awareness of the extreme propensity of all such rims to explode, and to block governmental action which would have required the manufacturers to recall the products" (165 A.D.2d 111, 115, 565 N.Y.S.2d 889, supra [emphasis in original]. The court also held that plaintiff's negligence and strict products liability claims set forth an alternative basis for liability not dependent on establishing that Goodyear manufactured the rim. Specifically, it stated that plaintiff's allegations that the subject Goodyear tire was made exclusively for use on inherently dangerous multipiece rims "could support recovery based upon Goodyear's failure to warn of the dangers of using its tires with multipiece rims"(id., at 116, 565 N.Y.S.2d 889).

Goodyear appeals pursuant to leave granted by the Appellate Division, arguing (1) that the tort theory of concerted action is not applicable in this products liability case and (2) product manufacturers should not be required to warn about the inherent dangers of a separate product manufactured by another company. We address Goodyear's arguments in that order.

II

The theory of concerted action "provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in 'a common plan or design to commit a tortious act' " (Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 506, 541 N.Y.S.2d 941, 539 N.E.2d 1069 [quoting Prosser and Keeton, Torts § 46, at 323 (5th ed.) ]; see, Bichler v. Lilly & Co., 55 N.Y.2d 571, 580-581, 450 N.Y.S.2d 776, 436 N.E.2d 182; De Carvalho v. Brunner, 223 N.Y. 284, 119 N.E. 563; Restatement [Second] of Torts § 876). It is essential that each defendant charged with acting in concert have acted tortiously and that one of the defendants committed an act in pursuance of the agreement which constitutes a tort (see, Prosser and Keeton, op. cit., at 324). Parallel activity among companies developing and marketing the same product, without more, we have held, "is insufficient to establish the agreement element necessary to maintain a concerted action claim" (Hymowitz v. Lilly & Co., supra, 73 N.Y.2d at 506, 541 N.Y.S.2d 941, 539 N.E.2d 1069).

In Hymowitz, this Court declined to adopt a modified version of concerted action, holding that inferring agreement from the common occurrence of parallel activity alone would improperly expand the concept of concerted action beyond a rational or fair limit (id., at 508, 541 N.Y.S.2d 941, 539 N.E.2d 1069). We explained that because application of concerted action renders each manufacturer jointly liable for all damages stemming from any defective product of an entire industry, parallel activity by manufacturers is not sufficient justification for making one manufacturer responsible for the liability caused by the product of another manufacturer (see, id.; Bichler v. Lilly & Co., supra, 55 N.Y.2d at 581, 450 N.Y.S.2d 776, 436 N.E.2d 182). Accordingly, we must determine here whether plaintiff has made any showing that the rim manufacturers engaged in more than parallel activity and, if not, whether the circumstances warrant expanding the concerted action theory so that it applies in this case.

In opposition to Goodyear's motion for summary judgment dismissing the concerted action claims, plaintiff alleged that Goodyear engaged in concerted action with Firestone, Kelsey-Hayes and Budd "to perpetuate the use of the deadly multi-piece rims, to prevent Government implementation of appropriate safety standards and to prevent a recall." More specifically, plaintiff alleged that the rim manufacturers took the following actions: campaigned through their trade association for OSHA to place the responsibility for safety precautions on truck maintenance employers and not on the manufacturers, decided not to issue warnings, lobbied successfully against a proposed ban on the production of all multipiece rims, and declined to recall the RH5 multipiece rim voluntarily.

These allegations and the exhibits plaintiff submitted to support them show parallel activity by the rim manufacturers. But they do not raise an issue of fact as to whether the rim manufacturers were parties to an agreement or common scheme to commit a tort. Indeed, plaintiff's affirmation in opposition to Goodyear's motion for summary judgment states no more than that "[t]he events...