Treadway v. Uniroyal Tire Co., 61823

CourtSupreme Court of Oklahoma
Citation766 P.2d 938
Docket NumberNo. 61823,61823
PartiesProd.Liab.Rep. (CCH) P 11,753, 1988 OK 37 Ronald TREADWAY, Plaintiff-Appellee, v. UNIROYAL TIRE COMPANY, A New York Corporation, Defendant-Appellant, and Otasco, Inc., an Oklahoma Corporation, Defendant.
Decision Date12 April 1988

Appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

From a jury verdict for the plaintiff in a manufacturer's products liability action in which the plaintiff sued for damages as a result of bodily injuries received when a tire was being mounted burst, the tire manufacturer appeals.


Bert M. Jones, J.A. McCullough, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, for defendant-appellant.

John D. Boydston, Harris, Boydston & Ghostbear, John A. Gladd, Gibbon, Gladd, Taylor, Smith & Hickman, Tulsa, for plaintiff-appellee.


In this appeal from a plaintiff's verdict in a manufacturers' products liability action, the appellant, who manufactured the automobile tire which the jury found caused the injury, submits three propositions of error. The appellant complains that a letter was improperly excluded from evidence, that an instruction was improperly worded, and that the verdict was excessive. In his answer brief, the appellee contends that the appellant's motion for new trial was defective because the motion was too vague and general to apprise the trial court of the reasons causing the appellant to seek relief, citing Horizons v. Keo Leasing Co., 681 P.2d 757 (Okla.1984). We affirm the decision of the trial court.

On June 30, 1979, the appellee, a service station attendant, was attempting to mount a tire manufactured by the appellant when the tire burst and the resulting force fractured three bones in the appellee's wrist. The injury has limited the use and movement of the appellant's right hand. The appellee presented evidence that future surgery is likely. The appellee's theory in his prosecution of the case was that the tire was defective from the time of manufacture, and the defect caused the tire to burst while the appellee was airing up the tire. The appellant presented evidence at the trial to support its theory that the appellee failed to follow the instructions for properly mounting a tire, and that failure caused the tire to burst, and not any defect in the manufacturing process.

Horizons holds that a motion for new trial is insufficient to preserve any errors for appellate review if the motion is too vague and general to inform the trial court in a meaningful way of the reasons for the relief sought. An examination of the hearing on the motion reveals that the appellant argued three points of error which are also argued in its brief in chief. The only objection to these arguments was made at the very beginning of the hearing. After the trial court called the case, the appellee's attorney, without any explanation, objected to the motion.

Any lack of specificity in the language of a motion for new trial is cured at the hearing if the movant, "without any objection from the opposite party," precisely identifies each point of law which is fairly comprised in the general allegations of the defective motion. Horizons, 681 P.2d, at 759. The appellee argues that because Horizons uses the term "any" in describing objection, that the objection made should suffice. Such an objection is insufficiently specific and is no more effective than a nonspecific motion for new trial. An objection is not a mere marker to serve as a flag in locating potential legal errors for the preparation of an appeal. "The purpose of an objection in a trial is to call the court's attention to errors being committed so that the court, as well as the opposing party, will be advised and have an opportunity to correct them." Hodo v. Cox, 437 P.2d 249, 250 (Okla.1967), quoting Ponca City Building

& Loan Co. v. Graff, 189 Okla. 410, 117 P.2d 514, 518 (1941). We therefore find that the appellee waived any objection to the form of the appellant's motion for new trial by appellee's failure to state the grounds for his objection

The argument in appellant's motion for new trial included three propositions of error: (1) that the trial court erred in refusing to permit the appellant's counsel to cross-examine appellee's expert concerning a certain letter sent by appellant to the expert; (2) that the trial court improperly instructed the jury on the appellant's defense of misuse; and (3) that the verdict of $750,000.00 was excessive. As no other propositions of error were argued to the trial court, no other issues shall be addressed by this Court. Horizons, 681 P.2d, at 759.

In the cross-examination of the appellee's expert, Mr. Loren Forney, the appellant attempted to have a letter admitted into evidence, dated November 8, 1983, which was less than a month before trial, that offered to allow Mr. Forney to visit one of the appellant's plants where he would be provided with a vulcanizer and a quantity of raw tires in order to demonstrate how the bead could be broken during the vulcanizing process. The bead is the inside edge of the tire which seals against the wheel. The trial court ruled that the probative value of the letter was outweighed by the danger of prejudice to the appellee. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, and such a ruling by the trial court will not be distrubed on appeal in the absence of a strong showing of prejudice to the proponent. Madill Bank and Trust Co. v. Herrmann, 738 P.2d 567, 571 (Okla.App.1987). Although the letter was not allowed in to attack the credibility of the witness, appellant's counsel thoroughly cross-examined Mr. Forney. He subsequently questioned the appellant's expert concerning the impossibility of the bead breaking inside the vulcanizer which was the theory advanced by the appellee. We find no abuse of the trial court's discretion in refusing to admit the letter.

In his second assignment of error, the appellant argues that the trial court's instruction number seven was equivalent in effect of eliminating the misuse issue from the jury's consideration, thereby substantially prejudicing the appellant. That instruction reads:

Defendants contend the plaintiff misused the Uniroyal tire, and defendant has the burden of proving such misuse as a defense.

Misuse of a product is where the method of using a product was not that which the manufacturer intended, or was it a use not reasonably anticipated by the manufacturer.

If the plaintiff was using the product in a manner that was foreseeable or could have been anticipated by the defendant, it is not misuse even if the plaintiff has been careless in that use.

In objecting to the wording of this instruction during the trial, the appellant asked the court to instruct that the tire could be misused if the appellee used the product in direct contravention of a legally sufficient warning which was on the product. The appellant argues in its brief that although the instruction given may have been an accurate statement of the law, it should have been tailored to fit the facts of the case.

The evidence shows that the instructions referred to specifically warn always to lubricate both beads and rim flanges with the proper solution which is described; always use a tire mounting machine with a hold-down device to inflate a tire but never inflate a tire which is lying on the floor or other flat surface; never to inflate to seal the beads without using an extension hose with a guage and a clip-on chuck; never to stand next to or lean over a tire and wheel while inflating; and never to exceed 40 psi pressure. The warning continues that failure to follow the safety precautions may result in serious injury. The evidence is uncontested that the appellee took the tire from the mounting device in order to finish inflating it. He attempted to air the tire on

the ground in order to seal the beads, and after checking the air pressure, he reached over the tire and it burst, injuring him. Whether or not he properly lubricated the beads or exceeded the air pressure was contested. The issue is whether the failure to follow the instructions in this case constitutes misuse

In establishing manufacturer's products liability in this State, the case of Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla.1974) set out three defenses to this tort. The first is that the defective product did not cause the injury. The burden of proof for causation is on the plaintiff, and the record in the case at bar reveals that the trial court so instructed. The plaintiff must prove that the defect directly caused his injuries. The other two defenses to manufacturer's products liability, abnormal use and voluntary assumption of the risk of a known defect, are affirmative defenses and must be pled or they are waived. RST Service MFG., Inc. v. Musselwhite, 628 P.2d 366 (Okla.1981). Kirkland uses the term "abnormal use" interchangeably with "misuse." Misuse was pled by the appellant in its answer.

Abnormal use or misuse of a product occurs where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer. Fields v. Volkswagen of America, Inc., 555 P.2d 48, 56 (Okla.1976). As Fields observes, a distinction must be drawn between use for an abnormal purpose and use for a proper purpose but in a careless manner. The latter use would properly be described as contributory negligence, which is not a defense to manufacturer's products liability cases. Negligence in the use of a product does not bar recovery under this tort even though the negligence "contributed" to the accident. Fields, 555 P.2d, at 57. As there is no dispute that the appellant could reasonably anticipate that a tire may be inflated on the ground, off of a...

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8 cases
  • Waggoner v. Town & Country Mobile Homes, Inc., 64507
    • United States
    • Supreme Court of Oklahoma
    • 27 Diciembre 1990
    ...A variance alone is not ground for reversal unless it is prejudicial and works as a surprise. See Treadway v. Uniroyal Tire Co., Okl., 766 P.2d 938, 948 n. 16 (1988) (Opala, J., dissenting). The harmless error statute (20 O.S.1981 § 3001.1, supra note 5) mandates that these plaintiffs' judg......
  • Cummings v. General Motors Corp., 02-6340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Abril 2004
    ...not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer." Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla.1988). Oklahoma has drawn a distinction between "use for an abnormal purpose" or misuse, and "use for a proper purpose but in a c......
  • Cummings v. General Motors Corporation, No. 02-6340 (Fed. 10th Cir. 6/2/2004), 02-6340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 2 Junio 2004
    ...not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer." Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla. 1988). Oklahoma has drawn a distinction between "use for an abnormal purpose" or misuse, and "use for a proper purpose but in a ......
  • Braswell v. Cincinnati Inc., 12–5128.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 23 Septiembre 2013
    ...addresses the known risks of use.” McPhail v. Deere & Co., 529 F.3d 947, 958 (10th Cir.2008); see also Treadway v. Uniroyal Tire Co., 766 P.2d 938, 947 n. 14 (Okla.1988) (“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a ......
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