Manning v. Goodyear Tire & Rubber, No. S1087-03 CnC (Katz, J., July 20,

2005)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.]

STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S1087-03 CnC

MANNING

v.

GOODYEAR TIRE &

RUBBER CO.

ENTRY

This case is about the evidence required to establ ish a product liability case where the product itself has been lo st. James Manning, a truck mechanic, was injured when the tire he was in flating blew up. He has brought suit against Goodyear Tire & Rubber, Co. cl aiming that a “zipper failure” design defect in Goodyear tires caused the explosion and his subsequent injuries. Goodyear seeks summary judgme nt on this claimbecause it argues that Manning cannot prove that th e tire was a Goodyear

and that the alleged “zipper” defect caused the blo wout. 1

Goodyear’s first claim for summary judgment focuse s on the paucity of Manning’s evidence concerning the identity of th e tire. This evidence consists of Manning’s proffered testimony that he s aw a Goodyear logo on the tire moments before it exploded. Manning also proffers three pieces of potential circumstantial evidence that do not neces sarily identify the tire as a Goodyear so much as they discredit Goodyear’s evi dence about the tire’s identity. 2 Goodyear’s evidence includes several affidavits f rom Manning’s supervisor and co-workers as well as pictures taken soon after the accident that identify the tire as a “virgin” Bridgestone. 3 To further muddy the factual waters, Goodyear also offers rebuttal evide nce to Manning’s circumstantial evidence including testimony that th e invoice was not completed until after Manning’s tire blew out.

1 Prior to filing this suit, Manning’s employer, Lil y Tire, disposed of the tire involved. Neither Manning nor Goodyear was di rectly responsible for this loss although Goodyear has argued that V.R.C.P. Rul e 37 sanctions should apply as Manning did not seek to preserve the tire until 14 months after the explosion. Because of our disposition, there is no need.

2 This evidence includes an invoice for the job, whi ch Manning was performing at the time of the accident, that indica tes the tires involved were retreads rather than “virgin” tires. This would te nd to contradict Goodyear’s evidence that the tire was a “virgin” Bridgestone.

3 A “virgin” tire is one that, regardless of its age and condition” has not been retreaded. Retread is a process that cuts awa y worn tread and replaces it. This is a standard practice for large and medium tr uck tires and does not involve the sidewalls of the tire where the alleged defect would be located.Neither party disputes Manning’s burden to establi sh the identity of

the tire to a reasonable probability. Perkins v. V t. Hydro-Electric , 106 Vt. 367, 399 (1934) (“[E]vidence supporting the claim m ust be more than a scintilla.”). Setting aside the factual problems p osed by Manning’s circumstantial evidence and Goodyear’s additional e vidence rebutting it, this issue boils down to Manning’s testimony that h e saw a Goodyear tire and Goodyear’s evidence that it was a Bridgestone. Although Goodyear’s evidence might be seen to preponderate, the questio n for us is whether there is a genuine dispute of material fact. White v. Qu echee Lake Landowners

Ass’n , 170 Vt. 25, 29 (1999). Manning’s direct evidence , through his own identification of the tire, creates an issue of mat erial of fact because it gives the jury, if it so chose, a factual hook on which i t could hang a determination. For this reason summary judgment on this threshold issue is inappropriate.

The role of the missing tire in Manning’s proximat e causation case is a different story. Manning claims that he was inju red because Goodyear tires have a design defect that causes their sidewa lls to come apart in a “zipper tear” when they have been foreseeably misus ed. 4 This zippering is not exclusive to Goodyear tires but is shared by ne arly all makes of truck

4 The particular misuse Manning cites to is under-in flation. Because the tires are usually coupled up on a side of the truck or trailer, it is difficult to detect if only one is under-inflated. The effect is a chr onic weakening of the metal cables imbedded within the sidewalls. After time, those cables can fail causing the sidewall to come apart as if the side of the ti re were unzipped. The type and length of under-inflation, however, can drastically affect the severity of any zipper tear. See, e.g., Jones v. Goodyear Tire & R ubber, Co. , 871 So. 2d 899, 901 (Fla. App. 2003).tires. See, e.g., Alvarez v. E.A. Produce Corporat ion , 708 So. 2d 997, 999

(Fla. App. 1998) (zipper tear on a Michelin tire). Manning’s theory of design defect liability is that Goodyear patented a n alternative tire design with strengthened sidewalls but did not adopt the d esign in any of its tires. 5 Regardless of how we approach the legal implication s of a design defect

case, 6 Manning must still connect his defect theory to th e blow up to show by a preponderance of the evidence that the defect proximately caused him harm. Webb v. Navistar Int’l Transp. Corp. , 166 Vt. 119, 127 (1996) (“The plaintiff bears the burden of proving that the prod uct is defective, and that its defect was the proximate cause of the harm.”); see also 2 D. Dobbs, Law

of Torts § 354 (2001).

Let us assume for the moment that Manning can prov e that all Goodyear tires share a design flaw in that their si dewalls collapse under the proper under-inflated/flat conditions and that they had a reasonable alternative design that would have prevented or at least reduced this condition. That still leaves Manning without any p roof to connect this

5 This position avoids the problem design-defect-lia bility plaintiffs face in the wake of the Restatement Third’s adoption of the reasonable alternative design over the consumer expectations test. Restatement ( Third) of Torts: Products Liability § 2(b), cmt. d, g.

6 The adoption of a reasonable alternative design st andard based on riskutility analysis has moved this area of the law awa y from § 402A’s strict liability standard toward negligence. See J. Henderson & A. Twerski, Products Liability:

Problems & Process , 480–92 (4th ed. 2000); 2 D. Dobbs, The Law of Torts § 357 (2001) . The Vermont Supreme Court has considered this vi ew but has not necessarily adopted it. Webb v. NavistarInt’l Transp. Corp. , 166 Vt. 119 , 134 (1996) (Morse, J., concurring).defect to this particular tire. His sole evidence on point is that he observed

a zipper-like tear as the tire exploded, knocking h im into the tire cage. But this merely creates a possibility, not a probabilit y, that a design defect caused his injuries. The problem is that there are any number of intervening and rational possibilities left open ev en if Manning’s evidence is fully accepted. For example, the tire might hav e had a manufacturing defect; the retreading company may have negligently checked the tire; the retreading might have been performed negligently cr eating a sidewall failure; the tire might have sustained some type of latent damage sometime

after manufacture outside of under-inflation that c aused it to fail; it might have been overinflation on Manning’s part.

While none of these examples are any more probable , they illustrate that the current evidence is at best speculative. As well, the defect is not exclusive to Goodyear tires but one that occurs to all brands and depends on intervening misuse—which may also affect its sev erity.

Furthermore, Manning seeks to treat all Goodyear t ires alike. As Goodyear demonstrates through its expert affidavits , different years, sizes, and models have different qualities. While none ma y have the patented design that Manning cites, they do have differences that affect their susceptibility to zipper tears. Without the actual tire, Manning or his expert’s conclusions on any of these are mere possi bilities, and a jury would be forced to speculate to determine the level and type of intervening

misuse that caused the tear. Travellers’ Ins. Co. v. Demarle, Inc. , 2005 VT 53, ¶ 10 (rejecting plaintiff’s strong mathematical possibility as sufficient for summary judgment). As the Vermont Supreme Cour t wrote:

Evidence which merely makes it possible for the fac t in issue to be as alleged, or which raises a mere conjecture, surm ise or suspicion,is an insufficient foundation for a verdict. There must be substantial evidence fairly and reasonably tending to support the plaintiff's claim to make a case for the jury.

Fuller v. City of Rutland , 122 Vt. 284, 289 (1961). The situation in this

case is the same.

Plaintiff would have the jury conclude that in the mere fraction of a second, which is all it took for the tire to explod e and push him back, seriously injuring him, he was nevertheless able to observe and comprehend both what was occurring and its cause. He not only observed it but reliably remembers it. In that startling an d ultimately painful and injurious instant, Plaintiff observed the sidewall

$ open up

$ in the exact manner of a zipper failure

$ with no cause or aid external to the tear. “The question is not merely whether there is any ev idence to this effect, but whether it is of such quantity and character as to justify a jury, acting reasonably, to predicate a verdict thereon in favor of the party having the burden of proof.” Perkins v. Vt. Hydro-Electric , 106 Vt. 367, 399 (1934). Given all the physical abuse to which a truck tire may be subjected,

Plaintiff’s multi-faceted flash recollection does n ot meet the standards of

either Perkins or Travellers’

.

Finally, it is important to note that our conclusi ons here do not involve the doctrine of spoliation. See West v. Go odyear Tire & Rubber,

Co. , 167 F.3d 776, 779 (2d Cir. 1999). Notwithstandin g Goodyear’s arguments about Manning’s delay, neither party was directly responsible

for the loss of the tire at issue here. To that ex tent, the conventional application of spoliation as a sanction of negative inferences against thespoiling party would appear to be inappropriate. S ee, e.g., In re Roger’s

Will , 80 Vt. 259 (1907); 29 Am. Jur. 2d Evidence § 244. At the same time, no particular positive inferences should be drawn f or either side from the missing tire. This means that the missing tire is simply that, a missing piece of evidence. Treating it as such, we have on ly drawn what logical inferences we can from the remaining pieces toward each party’s ultimate burden of proof.

Based on the foregoing, defendant Goodyear Tire an d Rubber’s motion for summary judgment is granted. Case is di smissed.

Dated at Burlington, Vermont________________, 2005

.