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Mazikoske v. Firestone Tire & Rubber Co.

OPINION FILED NOVEMBER 3, 1986.

JANICE MAZIKOSKE, CONSERVATOR OF THE ESTATE OF ALAN MAZIKOSKE, AN INCOMPETENT, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

FIRESTONE TIRE & RUBBER COMPANY ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (GENERAL MOTORS CORPORATION, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. David Shields, Judge, presiding.

PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

• 1 Janice Mazikoske, conservator of the estate of Alan Mazikoske, filed this action against Firestone Tire & Rubber Company (Firestone), Kelsey-Hayes Company (Kelsey-Hayes) and General Motors Corporation (GM) seeking to recover damages for severe personal injuries suffered by Alan Mazikoske when a 16-inch tire manufactured by Firestone exploded as he attempted to mount it onto a 16.5-inch wheel manufactured by Kelsey-Hayes and distributed by GM. Plaintiff alleged, inter alia, that the defendants were negligent in that they failed to warn tire mounters that a mismatch danger existed in mounting a 16-inch tire on a 16.5-inch wheel, and, additionally, such failure to warn made their products unreasonable dangerous. A previous suit between the parties, which named additional defendants, ended in a mistrial, and the plaintiff's claims against those additional defendants were subsequently dismissed pursuant to a settlement agreement. On retrial the jury found in favor of GM and against the plaintiff, *fn1 but it found in favor of the plaintiff and against Firestone and Kelsey-Hayes. The jury additionally found the plaintiff's damages to be $2,661,375 but reduced that figure by 80% to $532,275 because of the plaintiff's contributory negligence. The trial court entered judgment on the verdict, and Mazikoske, Firestone and Kelsey-Hayes all appeal.

The plaintiff contends that she is entitled either to the full amount of damages found by the jury as a matter of law or to a new trial on the issue of comparative fault because it is improper to reduce a strict products liability award on the basis of a plaintiff's contributory negligence or, alternatively, the jury's finding of 80% contributory negligence is against the manifest weight of the evidence. Also in support of her contention, the plaintiff claims the trial court committed the following errors: (1) improperly instructed the jury that the plaintiff was required to prove that the defendants knew or should have known of the mismatch danger, which made their products unreasonably dangerous; (2) improperly excluded evidence of post-occurrence accidents similar to Alan Mazikoske's; (3) improperly admitted certain trade publications into evidence; (4) improperly limited consideration of evidence of post-occurrence warnings, labels, and stampings to issue of their feasibility at the time of the accident; (5) improperly refused to limit consideration of evidence of defendants' compliance with industry standards to the negligence count; and (6) improperly refused to instruct the jury that defendants had the duty to sell a product that was not unreasonably dangerous and that use of care in the manufacturing process was not a defense.

Kelsey-Hayes and Firestone make the following contentions in their cross-appeals: (1) they had no duty to warn about the possible mismatch as a matter of law; (2) the plaintiff failed to present evidence demonstrating that they knew or should have known of the mismatch potential prior to Alan Mazikoske's accident; and (3) the plaintiff's claim against Kelsey-Hayes is time barred because the statute of limitations had run.

We affirm.

The only evidence introduced at trial regarding the events leading up to this tragic accident were the evidence depositions of George and Evelyn Lepper. Those depositions, which were read before the jury, indicated that, in early June 1971, George Lepper called his nephew-in-law, Chuck Gregory, at Gibson Chevrolet about acquiring a spare tire for his used 1969 Chevy three-quarter-ton pickup truck. George Lepper had purchased the truck at another dealership, which did not provide him with an owner's manual. The nephew said that he had a wheel but no tire. Gregory apparently selected the wheel solely on the basis of the truck's description and did not ask George what size wheel he needed. George picked up the wheel the following day. The size of the black-single-piece wheel was 16.5 by 6.75 inches, i.e., it had a 16.5-inch diameter and a 6.75-inch width. George put the wheel into the trunk of his wife's car, gave her a slip of paper on which he wrote the size tire he wanted, and asked her to a buy a tire. George said he got the tire size by reading the sidewall of one of the tires then on his truck.

Evelyn Lepper called a friend, David Dunnett, who worked at Sims Motor Freight and asked him where she could get a tire. Dunnett telephoned Evelyn later that day and told her a tire would be waiting at a Firestone warehouse located near 79th Street and Western Avenue in Chicago. When Evelyn arrived at the warehouse, a Firestone employee got a 7.5-by-16-inch tube-type tire and put it into the trunk of her car where the wheel was. The tire had a 7.5-inch width, but, unlike the Kelsey-Hayes wheel, it had a 16-inch diameter. The tire required an inner tube, which the warehouse did not have, so Evelyn went to another Firestone establishment and purchased a tube. Evelyn took the wheel, the tire, and the tube to a service station owned and operated by Alan Mazikoske and asked if Alan could mount the tire for her husband. Alan said he could do it and said George could pick it up later that evening.

Alan was mounting George's tire when George arrived that evening. In his deposition, George stated that the tire was on the floor and that Alan was bent over the tire. George said that Alan was not using a tire-mounting machine, located a few feet away from where he was working, nor did he restrain the tire in any other fashion. George said that Alan was hitting the tire with a mallet in an apparent attempt to knock approximately 6 to 10 inches of tire bead into the wheel. George asked Alan how much air he had in the tire, and Alan responded, "Eighty pounds." George said he stepped back a few feet and told Alan that was too much air. George stated that Alan began to introduce more air into the tire, and said, "Maybe it will snap in." George said that Alan was not using a remote air chuck, a device that would permit a tire mounter to stand back during the inflation process. George said the tire exploded shortly thereafter and struck Alan in the face.

As part of her case in chief, plaintiff called Lawrence Lehr, Paul Graney, and Douglas MacIntyre to testify, pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). Graney was senior design engineer for GM, MacIntyre was chief wheel engineer for Kelsey-Hayes, and Lehr was field engineering manager for Firestone.

Their testimony showed that 16.5-inch diameter wheels and tires first became available for GM trucks as optional equipment in 1968 and as standard equipment in 1969. MacIntyre testified that this new size was designed in part for three-quarter-ton trucks that were using 16- or 17.5-inch wheels. MacIntyre also stated that, during the five years preceding the accident giving rise to this lawsuit, it was physically impossible to mount a smaller tire on a larger wheel; it would break the tire bead and ruin the tire. Both Graney and MacIntyre admitted that the wheel flanges on the 16.5-inch wheel were smaller than the flanges on the 16-inch wheel, and MacIntyre stated, after comparing samples of the two sizes during trial, that the flanges on both wheels "match[ed]." Graney testified that GM did not consider the possibility of a mismatch because the 16-inch tire was a tube tire that was used on a two-piece rim and the 16.5-inch tire was tubeless and was used on a single-piece rim. However, Lehr testified that both single-piece and multi-piece wheel designs existed for 16-inch tires prior to 1971, and, even though the 16.5-inch wheel was designed for use with tubeless tires, it could accommodate a tube-type tire. Additionally, Lehr stated that, during the development of the 16.5-inch tire at Firestone, he was aware that one could fit the beads of a 16-inch tire over the flanges of a 16.5-inch single-piece wheel and that a tire mounter could inadvertently put a 16-inch tire on a 16.5-inch wheel.

The mismatching of wheel and tire diameters created a danger that was known and recognized in the industry, i.e., "bead hang up." MacIntyre described bead hang up as where the tire beads get stuck in the drop-center portion (wheel well) of a single-piece wheel during the mounting process. Bead hang up existed prior to the introduction of the 16.5-inch wheel, and it was caused by factors other than diameter mismatch, e.g., bead hang up could occur with a single-piece wheel that was either rusted or bent. Other known and recognized dangers associated with tire mounting were overinflation and the mismatching of parts from multipiece wheels. Lehr stated that Firestone warned of the danger associated with bead hang up since, if a tire mounter continued to inflate the tire with bead hang up without first correcting the situation, the tire could explode with fatal results. Likewise, a tire could explode if overinflated, or a mismatched ring from a multipiece wheel could suddenly fly off during the inflation process, both with results similar to the bead-hang-up situation.

The plaintiff also introduced into evidence a manual entitled Atlas Service Guide, Tire and Batteries, published by Atlas Supply Company in 1968 and which was in Alan Mazikoske's possession at the time of his accident. Lehr believed the company to be a division of Standard Oil. The guide listed the operating pressure for the tire involved in the accident at 45 pounds per square inch. Additionally, the guide included advice on how to safely mount tires for use on the size truck involved here. The guide advised that if the beads were not seated at 20 pounds per square inch, the mounter was to deflate the tire, relubricate the tire bead and the wheel rim, and reinflate the tire. The guide also warned the mounter not to stand with his head and shoulders over the tire while inflating it. However, the guide did not include any comments regarding restraining the tire during the mounting procedure, about using a remote clip-on air chuck, or about confirming that the wheel and tire diameters matched.

Additional items were introduced into evidence at trial pertaining to the amount of information available to Alan Mazikoske at the time of his accident. The plaintiff introduced three documents published by the Rubber Manufacturers Association (RMA), which is a trade organization comprised of approximately 10 to 12 domestic tire companies. During the trial, Lehr admitted that Firestone uses the RMA as an arm to disseminate information. RMA does not distribute its materials to the public unsolicited but only does so upon request. There was no evidence that Alan Mazikoske requested materials from RMA or had seen them at any time prior to his accident. The plaintiff introduced a 1968 wall chart, a 1968 guide for passenger car tires, and a 1969 guide for truck tires which were all published by the RMA. These items listed the maximum bead-seating pressure for the accident tire at 40 pounds per square inch. If the beads were not seated at that point, the RMA materials instructed the mounter, similar to the Atlas guide, to deflate, relubricate and reinflate. The RMA also recommended the use of an extension gauge with a clip-on chuck and cautioned the mounter not to stand over the tire while inflating it. The RMA publications did not include any statement that bead hang up could be caused by a mismatch of wheel and tire diameters.

The wheel, tire, and tube involved in this accident were also produced at trial. The tire had its size molded onto the sidewall, the wheel had its size stamped inside the wheel well, and the tube was marked with its size, 7.50-16. Also produced at trial was a tube box in which the accident tube was apparently packaged. However, the tube box was marked 7.50-15, but there was no evidence that the mounting instructions were or would be different. ...


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