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Nave v. Rainbo Tire Service

OPINION FILED MARCH 19, 1984.

REBECCA NAVE, ADM'R OF THE ESTATE OF ROBERT J. NAVE, JR., DECEASED, PLAINTIFF-APPELLANT,

v.

RAINBO TIRE SERVICE, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lee County; the Hon. Martin D. Hill, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 16, 1984.

Rebecca Nave, administrator of the estate of Robert J. Nave, Jr., deceased (Nave), appeals from a judgment entered on a jury verdict in favor of the defendant, Rainbo Tire Service, Inc. (Rainbo Tire), in a suit charging strict liability in tort and breach of warranty. Nave principally contends that trial errors in ruling on objections permitted the jury to reach its decision on an improper basis, the due care of Rainbo Tire in retreading a tire manufactured by another.

On November 9, 1977, Robert J. Nave, Jr., was killed when the truck he was driving collided with a tree. The decedent was driving on United States Route 30, a two-lane paved highway, when the truck's right front tire blew out, causing the truck to leave the highway and hit a tree, killing the driver. The accident occurred during the course of decedent's employment with Wood Products, Inc., while he was hauling a load of logs with a company-owned straight bed truck.

The decedent's surviving wife was appointed administrator of the estate and, in that capacity, brought an action against Rainbo Tire. The tire which blew out was a bias ply tire manufactured by Goodyear which had been retreaded by Rainbo Tire in 1976 and then sold to Wood Products, Inc. Nave alleged liability on the part of defendant on two theories, strict products liability and breach of the implied warranty of merchantability. In her third amended complaint, Nave alleged that the bond between the outer ply and original tread of the Goodyear tire carcass was inadequate, permitting a separation of these components and the ultimate failure of the tire. The strict liability count alleged that the tire was unreasonably dangerous for its intended use, while the breach of warranty count alleged that the tire was not of merchantable quality when used for ordinary purposes. No negligence on the part of Rainbo Tire nor any defect in the retreading process has been alleged. Goodyear has not been joined as a party.

Prior to trial, Nave filed a motion in limine seeking to exclude any evidence "[t]hat Defendant, Rainbo Tire Service, Inc., exercised due care in the retreading of the subject tire." The trial court denied the motion.

At trial, William Max Nonnamaker, a tire consultant, testified that, in his opinion, the tire failure was caused by "an inadequate bond between the bottom of the tread, the original tread, not the retread, and the top of the outer ply," and that the tire was unreasonably dangerous when it left the control of Rainbo Tire. On cross-examination, he stated that in his opinion the inadequate bond was not created by the retreading process, but rather existed when it left Goodyear, the manufacturer of the tire. He further stated that he would not have expected a retreader to have detected the presence of the inadequate bond. In his opinion, there was no evidence that the tire had been operated in an underinflated condition or that it had been operated in other than normal operating conditions.

Rainbo Tire presented the testimony of two expert witnesses, Edward J. Wagner (by means of an evidence deposition) and Robert Hill. Both of them were of the opinion that the tire failed because it had been operated in an underinflated condition and that the cause of the underinflation was a leaky valve core assembly inside the tire.

Mr. Hill testified concerning the procedure followed in retreading a tire. He stated that if a tread separation existed, it would have been detected during the retreading process, concluding "no way there could have been an original separation."

Rainbo Tire also presented John O'Neill, the chairman of its board of directors. Mr. O'Neill testified concerning the tire retreading process employed by Rainbo Tire. He stated that if there had been a separation in the tire, that separation would have been detected during the retreading process.

During Mr. O'Neill's testimony, Rainbo Tire offered into evidence a "Tire Retread Processing Manual" published by the National Tire Dealers and Retreaders Association and the Tire Retreading Institute. Nave objected to the admission of this exhibit on the basis that it was not a set of standards and, further, that it constituted hearsay, but the exhibit was admitted over her objection. The exhibit consists of 154 pages and contains a detailed step-by-step explanation of the retreading process for various types of tires, as well as a glossary of terms used in the retreading process and procedures for repairing, equipment installation and maintenance, and production and quality control record keeping. The only standard found in the manual applies to retreaded passenger car tires.

The jury returned a verdict for Rainbo Tire and the trial court entered judgment thereon. Nave then filed a post-trial motion alleging that the court erred in: (1) denying the paragraph of her motion in limine seeking to exclude all evidence of exercise of due care since the evidence was not relevant and its admission denied her a fair trial, and (2) admitting into evidence the "Tire Retread Processing Manual" since it was not relevant, relating only to the issue of Rainbo Tire's exercise of reasonable care and caution in the retreading process, and its admission denied her a fair trial. The trial court denied the post-trial motion.

I

Rainbo Tire preliminarily argues that the claims of error have been waived by failing to object at trial to the admission of certain evidence and to remarks made by defense counsel in argument and by failing to raise ...


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