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06/16/94 JUDY KORANDO v. UNIROYAL GOODRICH TIRE

June 16, 1994

JUDY KORANDO, ADM'R OF THE ESTATES OF DARRELL FRAZER AND TODD FRAZER, DECEASED, APPELLEE,
v.
THE UNIROYAL GOODRICH TIRE COMPANY, APPELLANT.



Bilandic

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The plaintiff, Judy Korando, as administrator of the estates of her children Darrell Frazer and Todd Frazer, brought an action in the circuit court of Jackson County against the defendant, the Uniroyal Goodrich Tire Company. Darrell and Todd died following a one-car automobile accident. The plaintiff brought a products liability action alleging that the accident was caused by a defect in a tire manufactured by the defendant. The jury returned verdicts in the defendant's favor and the trial court entered judgment in favor of the defendant and against the plaintiff. The appellate court reversed and remanded for a new trial (No. 5-90-0809 (unpublished order under Supreme Court Rule 23)). This court allowed the defendant's petition for leave to appeal (134 Ill. 2d R. 315).

The evidence presented at trial established the following pertinent facts. On November 16, 1988, Kenneth Rice drove Todd's car, a 1974 Ford Maverick, from Chester, Illinois, to Cape Girardeau, Missouri, to pick up Todd, who worked on a river barge. Darrell, Todd's younger brother, accompanied Rice. Todd drove the car back to Illinois with Rice in the front passenger seat and Darrell in the back seat. While Todd was driving on Illinois Route 4, the tread and the top belt of the right rear steel-belted radial tire separated from the bottom belt. The car skidded and went off the roadway, where it collided with a tree, vaulted into the air, and landed upside down in a creek. Darrell and Todd died as a result of injuries sustained in the accident, and Rice suffered a broken neck.

The tire involved in the accident was manufactured by the defendant in 1980. Prior to the accident, the tire had been subjected to three punctures, which were repaired with patches and a plug. Additionally, the beads of the tire had been damaged such that an inner tube was placed in the tire to ensure that the tire retained air.

The plaintiff subsequently instituted the present products liability action against the defendant. The sole theory of recovery was strict liability. In the complaint, the plaintiff contended that the tire on the car was in an unreasonably dangerous condition when it left the defendant's control, in that the defendant defectively manufactured the tire. According to the complaint, the defective tire was the proximate cause of the accident, which ultimately resulted in the deaths of Darrell and Todd. Rice also sued the defendant but settled prior to trial.

The defendant denied the plaintiff's allegations and raised three affirmative defenses: (1) the tire separated as a result of Todd's misuse and abuse, (2) Darrell and Todd assumed the risk of injury due to their awareness that the tire was not in good condition, and (3) Todd's contributory negligence was the sole proximate cause of Darrell's and Todd's deaths. However, since the affirmative defenses of misuse and abuse and contributory negligence were withdrawn prior to trial and the affirmative defense of assumption of risk was withdrawn at the close of all the evidence, these defenses were not presented to the jury for consideration.

In support of her claim, the plaintiff presented the testimony of expert witnesses. George Edwards, an independent tire consultant, testified as the plaintiff's expert witness. Edwards testified that the cause of the accident was the tire failure, which resulted from a defect in manufacturing. According to Edwards, the tire was in an unsafe condition when it left the manufacturer because the tire had insufficient adhesion within the steel-belt system. The insufficient adhesion caused the steel belt and the tread to separate, which ultimately caused the vehicle to veer out of control. Edwards contended that the two patches and the one plug in the tire did not cause the tread and belt separation. Moreover, it was his opinion that the speed of the car and Todd's braking and steering did not cause the accident.

Jackson County Deputy Sheriff Walter Brent Mosel, a certified accident reconstructionist with the State of Illinois, testified that he investigated the accident. Mosel calculated the speed of the car to be between 63 and 78 miles per hour. According to Mosel, one of the contributing factors to the accident was the loss of tread in the right rear tire. He also stated that the terrain of the area contributed to the accident.

Kenneth Rice testified that he had possession of Todd's car for 11 days prior to the accident, during which time he had no problems. Rice estimated that just prior to the accident, Todd was driving the car about 60 to 65 miles per hour. He testified that it seemed like the tire fell apart and then the car went sideways and ultimately went off the road.

After the close of the plaintiff's case in chief, the defendant presented a series of expert witnesses. James Laurence Tomlinson, an accident reconstruction expert, testified on behalf of the defendant. In Tomlinson's opinion, after the tread separated from the tire, the tire did not immediately blow out, but it lost air due to a locked-brake slide. He stated that a vehicle will go essentially straight either when a tire blows out or where the tread separates. Tomlinson testified that, even with the tread coming off the tire, the accident would not have happened absent Todd's steering input and application of the brakes. Furthermore, Tomlinson testified that speed, which he calculated had been between 78 and 92 miles per hour, was a contributing factor in the accident. If the car had been going at a slower rate of speed, the car would have stopped before going off the roadway.

Richard John Harrison, director of product reliability for the defendant, also testified as a defense expert witness. Harrison testified that the tire failed after the top belt and tread detached and the lock-top skid abraded through the remaining belt and carcass, allowing the inner tube to blow out. In his opinion, the tread separation occurred as a result of a prior impact to the tire that damaged the adhesive bond between the two belts. Harrison further explained that the tire was in a weakened condition before the impact damage occurred since the adhesive system of the tire had already been degraded by three punctures. After the impact damage, the separation in the tire moved and grew such that the tread was ultimately torn apart by traction force. Harrison determined that, in addition to the impact damage, highway resistance is greater at a faster speed, and, if the tire is already in a weakened condition, the tearing force exerted on the tread would be greater. Thus, Harrison found that the condition of the tire and the speed contributed to the tread separation.

Lynn Barry Fricke's evidence deposition was admitted at trial. Fricke, a consultant in accident reconstruction, was originally hired by the plaintiff. Fricke testified that the tread separated from the tire when the car was traveling 75 miles per hour. It was Fricke's opinion that there was no loss of air in the tire immediately following the tread separation; instead, the tire remained inflated until the car left the paved surface of the roadway. It was also his opinion that when the tread separated from the tire, the car was controllable and moved more or less straight down the road. Consequently, if the driver had held the steering wheel straight, the car would not have left the road. Fricke also stated that if the car had been going 55 miles per hour, the car would not have gone off the road. Based on the foregoing, Fricke testified that aside from the tire tread separating, the driver's steering input and the speed of the car contributed to the accident.

Prior to trial, the parties stipulated that, in the event of a jury deadlock, the vote of nine members of the jury would constitute the vote of the jury. After considering all of the evidence, the jury reached a deadlock. The Judge then read the "deadlock" jury instruction, which informed the jurors that, in order to return a verdict, nine jurors must agree to it. As stated, the jury returned two general verdicts, which were signed by nine members of the ...


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