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04/09/87 Lorene Stewart, v. the B. F. Goodrich Company

April 9, 1987

LORENE STEWART, PLAINTIFF-APPELLANT

v.

THE B. F. GOODRICH COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

506 N.E.2d 783, 153 Ill. App. 3d 1078, 107 Ill. Dec. 40 1987.IL.471

Appeal from the Circuit Court of Madison County; the Hon. John Gitchoff, Judge, presiding.

APPELLATE Judges:

Justice Welch delivered the opinion of the court. Harrison, J., concurs. Presiding Justice Karns, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This is a products liability action commenced by plaintiff Lorene Stewart against defendant B. F. Goodrich Company in the circuit court of Madison County. The circuit court entered summary judgment for defendant. Plaintiff appeals. We reverse and remand.

Plaintiff's complaint alleged as follows: Plaintiff purchased an automobile which had as original equipment four tires manufactured by defendant. On June 11, 1982, plaintiff was driving the vehicle when the right rear tire exploded and blew out, causing the car to go out of control and overturn, injuring plaintiff. The whereabouts of the tire was unknown.

The issue for review is narrowly defined by the parties. The record on appeal includes the affidavit and discovery deposition transcript of Rex Miller, whose status as an expert on the subjects of tires and tire failures is conceded for purposes of this appeal. Plaintiff contends Miller's deposition was sufficient to raise a material question of fact as to whether a defect in the tire in question which existed at the time the tire left defendant's control was a proximate cause of plaintiff's injury. Defendant contends Miller was unable to state the tire in question did not fail as a result of deflation or underinflation which was not present when the tire left defendant's control. Miller rendered his opinion regarding the tire in question without viewing the tire other than as it appeared in 12 photographs of plaintiff's vehicle after the occurrence. Miller also read plaintiff's discovery deposition transcript and defendant's answers to plaintiff's interrogatories and had an external view of the spare tire taken from the trunk of plaintiff's vehicle. The spare tire was also manufactured by defendant and Miller assumed it was of the same type as the tire in question. Miller's affidavit was in pertinent part:

"3. I have been advised of the facts of the accident . . . and have personally examined a companion tire to the one that suddenly deflated.

4. In my opinion, the tire suddenly deflated and caused the upset of the automobile in which Lorene Stewart was riding which her subsequent injuries [ sic ].

It is further my opinion that said tire was defective at the time of its manufacture and from the time it left the control of its manufacturer in that it separated, causing it to over heat, which caused the sudden deflation and blow out aforesaid."

The critical portion of Miller's deposition testimony follows:

"Q. But can you say simply because the tire went 20 to 30, 000 miles that it was due to any one of these causes? Can you rule out, is there anything about what you know about this accident in these pictures and from what you have been told and have examined that would tell you that it absolutely was not caused -- a separation of the tire was ...


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