Brumley v. Firestone Tire & Rubber Co.

459 So. 2d 572, 1984 La. App. LEXIS 9856
CourtLouisiana Court of Appeal
DecidedNovember 7, 1984
Docket83-995
StatusPublished
Cited by11 cases

This text of 459 So. 2d 572 (Brumley v. Firestone Tire & Rubber Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brumley v. Firestone Tire & Rubber Co., 459 So. 2d 572, 1984 La. App. LEXIS 9856 (La. Ct. App. 1984).

Opinion

459 So.2d 572 (1984)

Virginia BRUMLEY, Plaintiff-Appellant,
v.
The FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellee.

No. 83-995.

Court of Appeal of Louisiana, Third Circuit.

November 7, 1984.
Rehearing Denied December 13, 1984.
Writ Denied February 4, 1985.

*573 Thomas & Hardy, Robert W. Thomas, Lake Charles, for plaintiff-appellant.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert and Robert S. Dampf, Lake Charles, for defendant-appellee.

Before DOMENGEAUX, CUTRER and LABORDE, JJ.

LABORDE, Judge.

In this personal injury action based on products liability, plaintiff, Virginia Brumley, appeals a trial court judgment rejecting her claim for damages arising out of a single car collision allegedly caused by a defective tire manufactured by defendant, The Firestone Tire & Rubber Company. After reviewing the evidence, we find manifest error in the trial court's decision. Accordingly, we reverse and render judgment in favor of plaintiff.

FACTS

On November 27, 1981, plaintiff was driving her 1975 Ford LTD in a westward direction on Louisiana Highway 12 when suddenly and without warning the right front tire of her car "blew out." The blowout caused her to lose control of the car. She ran off of the road into a ditch and *574 collided with an embankment. She was severely thrown about the car, her head hitting the seat rest and her left arm striking the door. She reported to doctors that she began having pains in her hips and legs approximately two or three days following the incident.

The trauma to her left elbow caused pain in her left arm and shoulder and into the neck region. Her injuries, although disputed, consisted of an acute cervical and lower back sprain, and a bruised left elbow.

Following the accident, plaintiff's friend, C.B. "Roy" Hryhorchuk, helped her change the tire so she could drive home. He testified that the tire had apparently disintegrated and that he could see the radial cords protruding through the tire. There was no evidence of dangerous pavement conditions or road objects that may have caused the blowout. The following day plaintiff reported the incident to Gary Savoy, assistant manager of the Firestone store in Orange, Texas, complaining of the unexpected and violent blowout. She did not relate any physical injuries to him since she had not manifested any symptoms at that point.

The tire was relatively new and it is undisputed that it exhibited little wear. Mr. Savoy informed plaintiff that the Firestone steel belted "500" radial which blew out on her car was "defective" and that its inner steel belts had "separated," thereby causing the blowout. Mr. Savoy further stated in a letter to plaintiff that the blowout, caused by the "separation," could have reasonably caused her to lose control of her car. Based on these representations by Mr. Savoy, plaintiff was given a "full adjustment" in the form of a cost free replacement of the defective tire. This replacement, however, was contingent upon plaintiff signing a release form holding defendant harmless from any and all liability that may have been caused by the admittedly defective tire.

Plaintiff instituted this suit to recover for damages resulting from her personal injuries arising out of the accident. The trial court held that plaintiff failed to prove her claims by a preponderance of the evidence. She appeals from this judgment.

ISSUE

The issue presented on appeal is whether the trial court committed manifest error, in light of the evidence presented, in holding that the plaintiff failed to prove her claim by a preponderance of the evidence.

After thoroughly reviewing the testimony and evidence, and in light of the applicable legal standards, we hold that the trial court did commit manifest error in rejecting plaintiff's claim.

DEFECTIVE TIRE/PRODUCTS LIABILITY

It is well-settled in our law that a manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article or a failure adequately to warn of inherent dangers, if the injury might have reasonably been anticipated. The plaintiff has the burden of proving by a preponderance of the evidence that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971); LeBouef v. Goodyear Tire & Rubber Company, 623 F.2d 985 (5th Cir.1980).

In a negligence cause of action, it is the plaintiff's burden to prove that the manufacturer knew, or should have known, that its product created an unreasonable risk of harm, while such knowledge is presumed in a products liability case. In Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978), the Louisiana Supreme Court held that, "when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user." Id. at 930 (emphasis added). *575 This duty arises out of the manufacturer's actual or constructive knowledge of its product's shortcomings. This duty was later expanded in Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3rd Cir.), cert denied, 394 So.2d 615 (La.1980), wherein the court indicated that "normal use" within the parlance of Louisiana Products Liability Law encompasses all intended and foreseeable uses, including reasonably foreseeable misuse, in which the consumer may engage with the product. A product is therefore "defective" if it is unreasonably dangerous in normal use, which includes a failure to warn of a known or reasonably foreseeable danger. Scott v. Black & Decker, Inc., 717 F.2d 251, 253 (5th Cir.1983). We conclude that in all cases of products liability, including those of failure to warn, a manufacturer is presumed to know of its product's potential hazards. With respect to failure to warn cases, if a product creates an unreasonable risk of harm from foreseeable use or likely misuse and the ordinary user cannot reasonably be expected to appreciate that risk, then a warning is required. Chappuis, supra. The user must be warned concerning the potential dangers of a product, whether he be the purchaser or not, and it is the user who should be furnished instructions or warnings intended to prevent misuse. Chappuis, supra; Byrd v. Hunt Tool Shipyard, 650 F.2d 44 (5th Cir.1981).

The manufacturer has a duty to know all dangerous qualities of the product, whether they be of design, manufacture, composition or failure to warn, and is responsible for making these dangers known to purchasers, or users, even though the product itself is not inherently dangerous. Jowers v. Commercial Union Ins. Co., 435 So.2d 575 (La.App. 3rd Cir. 1983); O'Brien v. Delta Gas, Inc., 426 So.2d 262 (La.App. 4th Cir.), writ denied, 433 So.2d 163 (La.1983).

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