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

2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court 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 establish a product 

liability case where the product itself has been lost. James Manning, a 

truck mechanic, was injured when the tire he was inflating blew up. He has 

brought suit against Goodyear Tire & Rubber, Co. claiming that a “zipper 

failure” design defect in Goodyear tires caused the explosion and his 

subsequent injuries. Goodyear seeks summary judgment on this claim 
because it argues that Manning cannot prove that the tire was a Goodyear 

and that the alleged “zipper” defect caused the blowout.1 

 Goodyear’s first claim for summary judgment focuses on the paucity 

of Manning’s evidence concerning the identity of the tire. This evidence 

consists of Manning’s proffered testimony that he saw a Goodyear logo on 

the tire moments before it exploded. Manning also proffers three pieces of 

potential circumstantial evidence that do not necessarily identify the tire as 

a Goodyear so much as they discredit Goodyear’s evidence about the tire’s 

identity.2

 Goodyear’s evidence includes several affidavits from 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 evidence to Manning’s 

circumstantial evidence including testimony that the invoice was not 

completed until after Manning’s tire blew out. 

 

1

 Prior to filing this suit, Manning’s employer, Lily Tire, disposed of the 

tire involved. Neither Manning nor Goodyear was directly responsible for this 

loss although Goodyear has argued that V.R.C.P. Rule 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, which Manning was 

performing at the time of the accident, that indicates the tires involved were 

retreads rather than “virgin” tires. This would tend 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 away worn tread and replaces it. 

This is a standard practice for large and medium truck tires and does not involve 

the sidewalls of the tire where the alleged defect would be located. 
 Neither party disputes Manning’s burden to establish the identity of 

the tire to a reasonable probability. Perkins v. Vt. Hydro-Electric, 106 Vt. 

367, 399 (1934) (“[E]vidence supporting the claim must be more than a 

scintilla.”). Setting aside the factual problems posed by Manning’s 

circumstantial evidence and Goodyear’s additional evidence rebutting it, 

this issue boils down to Manning’s testimony that he saw a Goodyear tire 

and Goodyear’s evidence that it was a Bridgestone. Although Goodyear’s 

evidence might be seen to preponderate, the question for us is whether there 

is a genuine dispute of material fact. White v. Quechee Lake Landowners 

Ass’n, 170 Vt. 25, 29 (1999). Manning’s direct evidence, through his own 

identification of the tire, creates an issue of material of fact because it gives 

the jury, if it so chose, a factual hook on which it could hang a 

determination. For this reason summary judgment on this threshold issue is 

inappropriate. 

 The role of the missing tire in Manning’s proximate causation case is 

a different story. Manning claims that he was injured because Goodyear 

tires have a design defect that causes their sidewalls to come apart in a 

“zipper tear” when they have been foreseeably misused.4

 This zippering is 

not exclusive to Goodyear tires but is shared by nearly all makes of truck 

 

4

 The particular misuse Manning cites to is under-inflation. 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 chronic 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 tire 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 & Rubber, Co., 871 So. 2d 899, 901 

(Fla. App. 2003). 
tires. See, e.g., Alvarez v. E.A. Produce Corporation, 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 an alternative tire design 

with strengthened sidewalls but did not adopt the design in any of its tires.5 

Regardless of how we approach the legal implications of a design defect 

case,

6

 Manning must still connect his defect theory to the 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 product 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 prove that all 

Goodyear tires share a design flaw in that their sidewalls 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 proof to connect this 

 

5

 This position avoids the problem design-defect-liability 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 standard based on riskutility analysis has moved this area of the law away 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 view 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 him into the tire cage. But 

this merely creates a possibility, not a probability, that a design defect 

caused his injuries. The problem is that there are any number of 

intervening and rational possibilities left open even if Manning’s evidence 

is fully accepted. For example, the tire might have had a manufacturing 

defect; the retreading company may have negligently checked the tire; the 

retreading might have been performed negligently creating a sidewall 

failure; the tire might have sustained some type of latent damage sometime 

after manufacture outside of under-inflation that caused 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 severity. 

 Furthermore, Manning seeks to treat all Goodyear tires alike. As 

Goodyear demonstrates through its expert affidavits, different years, sizes, 

and models have different qualities. While none may 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 possibilities, 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 Court wrote: 

Evidence which merely makes it possible for the fact in issue to be 

as alleged, or which raises a mere conjecture, surmise 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 explode 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 and 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 evidence 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 not meet the standards of 

either Perkins or Travellers’. 

 Finally, it is important to note that our conclusions here do not 

involve the doctrine of spoliation. See West v. Goodyear Tire & Rubber, 

Co., 167 F.3d 776, 779 (2d Cir. 1999). Notwithstanding Goodyear’s 

arguments about Manning’s delay, neither party was directly responsible 

for the loss of the tire at issue here. To that extent, the conventional 

application of spoliation as a sanction of negative inferences against the 
spoiling party would appear to be inappropriate. See, 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 for 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 only 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 and Rubber’s 

motion for summary judgment is granted. Case is dismissed. 

 Dated at Burlington, Vermont________________, 2005.