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09/29/97 MARK A. PETERSON v. RESS ENTERPRISES

September 29, 1997

MARK A. PETERSON, PLAINTIFF-APPELLEE,
v.
RESS ENTERPRISES, INC., D/B/A ARMY TRAIL TIRE & SERVICE CENTER, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE IRWIN J. SOLGANICK, JUDGE PRESIDING.

Released for Publication November 26, 1997.

Presiding Justice Campbell delivered the opinion of the court. O'brien, J., and Gallagher, J., concurring.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This appeal arises out of an action brought by plaintiff, Mark Peterson, against defendant, Ress Enterprises, Inc., d/b/a Army Trail Tire & Service Center (Ress), and others, for injuries he sustained in an automobile accident as a result of improper tire repair. Following a jury trial in the circuit court of Cook County, the jury returned a verdict in favor of plaintiff and against Ress and other defendants in the amount of $12,650,000, and apportioned 30% of the fault for the accident to Ress. On appeal, Ress contends that: (1) the trial court erred in failing to enter judgment notwithstanding the verdict (j.n.o.v) because plaintiff failed to prove proximate cause; (2) the verdict is against the manifest weight of the evidence; (3) the trial court erred in failing to instruct the jury regarding adverse influences because plaintiff lost the spare tire; (4) the trial court erred in barring evidence showing the bias and prejudice of plaintiff's witnesses; and (5) the trial court erred in failing to impose a reasonable sanction for plaintiff's loss of the spare tire. For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. On March 19, 1989, Theodore Christ was driving a Ford Bronco (Bronco) automobile owned by James J. Koran, eastbound on Interstate 30 near Prescott, Arkansas. Plaintiff, Sean Jerding and others were passengers in the Bronco. The left rear tire of the Bronco failed, Christ lost control of the vehicle, and the Bronco rolled over and off of the roadway. Plaintiff sustained injuries as a result of the accident which rendered him a quadriplegic. Jerding also suffered serious injuries.

Plaintiff and Jerding filed a complaint against Ress and others on September 28, 1990, alleging negligence for improper repair performed to a tire, and strict liability in tort damages. Plaintiff and Jerding alleged that Ress acted as an agent of Goodyear Tire & Rubber Co.

Plaintiff and Jerding also brought suit against B.F. Goodrich and Suburban Tire Co., alleging negligence and strict liability in connection with the manufacture, sale and distribution of the WildTrac tires. Plaintiff and Jerding brought suit against Ford Motor Company (Ford), alleging negligence and strict liability in connection with the fiberglass roof, and the propensity of the Bronco to roll over.

Plaintiff and Jerding amended their complaint joining Camel Tire Care Products, a division of Bridge Products, Inc. (Bridge), alleging negligence in connection with the manufacture and distribution of string plugs. Plaintiff and Jerding joined Theodore Christ on allegations of negligent operation of the Bronco, and James Koran on allegations of negligent maintenance of the Bronco.

On April 4, 1995, prior to trial, the trial court entered an order granting Jerding's motion for voluntary dismissal of his action against all defendants without prejudice. In addition, plaintiff entered into pre-trial monetary settlements with Ford, Bridge, James Koran, and Theodore Christ.

TRIAL

At trial, Theodore Christ testified on plaintiff's behalf that on March 19, 1989, he was driving the Koran's Bronco home to Normal, Illinois, following a trip to South Padre Island, Texas. Christ described the highway conditions as clear and dry. Christ heard a "thump" noise, then suddenly lost control of the Bronco. The Bronco began to "fishtail," then rolled over onto the driver's side causing Christ to hit his head on the roof.

Walter Phillips testified that he was driving in a vehicle behind the Bronco at the time of the accident, when he observed sparks emitting from the rear end of the Bronco. Phillips saw the Bronco spin clockwise, so that the front end of the Bronco was facing him. Then the Bronco rolled over, the top of the vehicle hit the ground, and the roof detached from the vehicle. All of the occupants were ejected from the Bronco in the course of the crash. Phillips stopped his vehicle to render assistance and summoned help.

Plaintiff presented the accident reconstruction testimony of Dr. Michael Kaplan to show that failure of the left rear tire caused loss of driver control. Dr. Kaplan testified that loss of steering control occurred as a result of the left rear tire deflating and the tire rim contacting the pavement. Dr. Kaplan testified that the Bronco rolled over 2 1/4 turns, and travelled 124 feet after it began to roll over.

Dr. Kaplan stated that the fiberglass roof of the Bronco was crushed and torn off when it rolled over, and that plaintiff was ejected from the Bronco in the crash. Dr. Kaplan stated that the fiberglass roof of the Bronco is defective in design and unreasonably dangerous due to its propensity to tear off in roll-over type accidents. Dr. Kaplan testified that occupants ejected from a vehicle in a roll-over are more likely to sustain serious personal injuries. Dr. Kaplan admitted that he never saw the tire that failed, and did not render an opinion as to the cause of the tire failure.

Harold Herzlich, a former employee of both Goodyear and Armstrong Perilli Tire Co., testified as an expert witness on plaintiff's behalf. Herzlich testified that the tire that failed had been previously repaired using a string plug inserted from the outside. Herzlich testified that string plug repairs from the outside are improper for two reasons: (1) the repairman cannot inspect the inside of the tire for damage; and (2) a string plug may cause air to seep into the tire casing. Herzlich testified that if air gets into the tire casing it can cause chemical changes in the rubber of the tire, and these changes can cause loss of the following: flexibility, stretchability, resiliency and strength. For these reasons, Herzlich stated that tires should be repaired from the inside using a patch and plug.

Herzlich testified that failure to inspect the inside of the tire for damage at the time it was repaired is not a proximate cause of this accident because there was not damage on the inside of the tire at the time of repair to be observed. Herzlich stated that road hazard impact caused the tire to fail in this case. Herzlich could not identify the road hazard that caused the tire to fail. He testified that the tire could have withstood the road hazard but for the weakened condition of the tire caused by the string plug.

Herzlich was unable to determine whether the plug itself failed, because the tire was too disrupted as a result of the accident. Herzlich admitted that there are over one million tires on the road running satisfactorily with string plug repairs inserted from the outside. Herzlich could not identify any authoritative source, test, or study in support of his opinion that string plug repairs performed from the outside cause tires to fail. Herzlich could not determine whether the tire that failed was ever repaired by Ress.

James Koran and Karen Koran testified that they owned the 1983 Bronco involved in the accident. *fn1 In July 1986, the Korans purchased four B.F. Goodrich WildTrac tires for the Bronco to replace the four original equipment General tires. One of the original tires then became a spare. Following a trip to Wyoming in 1987, the right rear WildTrac tire was removed from the Bronco and became the spare; the spare General tire was then placed in the right rear position.

On October 14, 1988, Karen noticed that the left rear tire of the Bronco was flat. The next morning, October 15, 1988, James jacked up the Bronco in the driveway, removed the left rear tire and took it to Ress, a Goodyear certified auto service center. James picked up the repaired tire later that day, brought it home and reinstalled it in the left rear position on the Bronco.

The Korans did not have the tires rotated on the Bronco at any time between the summer of 1987, and the date of the accident. At the time of the accident, WildTrac tires were located on the left rear, left front and right front of the Bronco, a General tire was on the right rear and a B.F. Goodrich WildTrac was serving as the spare.

James stated that the Bronco was driven approximately 28,000 miles after he purchased the WildTrac tires, and that there were many flat tires and many repairs made to the WildTrac Tires prior to the date of the accident. James could not recall where he had all these tire repairs done, he could only recall the Ress repair.

Karen stated that sometime prior to the date of the accident, she gave the Bronco to her brother, Sean Jerding, to take a trip to South Padre Island, Texas. Jerding had the Bronco for two weeks prior to the time he and plaintiff left for South Padre Island, and during that time Jerding drove the Bronco around Normal, Illinois. Jerding did not testify at trial.

Arkansas State Trooper Ocie Rateliff testified that he attended the scene of the accident, and afterward notified Jerry Hildebrand's Autobody shop (Autobody), in Prescott, Arkansas to remove the Bronco to the custody of the shop. Autobody is a State Police accredited impound facility, and as such, was surrounded by an 8-foot chain link fence, a locked gate and supervision as required by the Arkansas State Police Department.

Officer Rateliff identified photographs taken either March 28, or March 29, 1989, showing the Bronco at Autobody. The photographs show the spare tire in the cargo area of the Bronco. Officer Rateliff testified that the spare tire was not secured, that it was "just sitting in there loose." The officer stated that ...


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