Uniroyal Goodrich Tire Co. v. Ford

461 S.E.2d 877, 218 Ga. App. 248

• Court: Court of Appeals of Georgia
• Decided: July 14, 1995
• Docket: A95A0465 to A95A0470
• Status: Published

Opinions

Andrews, Judge.

Uniroyal Goodrich Tire Company, a Delaware corporation, and Uniroyal Goodrich Tire Company, a New York partnership in which the Delaware corporation is a general partner, (referred to as UGTC unless otherwise necessary) appeal from judgments entered against them in these product liability cases, including $25 million in punitive damages.

This case had its genesis in a wreck in August 1989 involving the Fords’ 1982 van which was equipped with UGTC-produced tires. Mrs. Ford, Jr. had originally purchased two new SP-7000 tires from NTW, also named as a defendant, in February 1988. One of the tires was returned to NTW and replaced with a new tire because of a vibration noticed by Mr. Ford, Jr., which NTW attributed to the tire being out of round. In August 1989, while returning from vacation on Interstate 85 with their sons, Frank (Ford III) and Doug, Mr. Ford, Jr., who was driving the van, again noticed an intermittent vibration while they were south of the Atlanta airport. Although the Fords discussed the vibration and possible causes, including a tire problem, they continued their trip. Near the North Druid Hills exit on 1-85, they heard two thumps, the second of which caused Mr. Ford, Jr. to have to struggle with the steering wheel to control the van. The left rear tire had ruptured, causing the steel belt to wrap around the rear axle, totally immobilizing the van. Because they were in the third lane, one lane from the median, they did not exit the van, but remained in it while Mr. Ford, Jr. attempted to move the van and call for help on his C.B. radio. Several minutes later, the immobilized van was rammed from behind by a car driven by Parsons, who was killed by the impact. Frank Ford III suffered severe and permanent brain damage and Mrs. Ford a badly fractured leg.

These appeals involve two separate actions which were brought seeking to recover for these injuries. One action (case nos. A95A0468 and A95A0469) was brought against the defendants by Mr. and Mrs. Ford, Jr. for injuries suffered by Mrs. Ford, Jr. in the collision along with Mr. Ford, Jr.’s loss of consortium claim. An identical separate action (case nos. A95A0465 and A95A0466) was filed against the same defendants on behalf of the son, Ford III, for his injuries.

1. UGTC moved for consolidation of the two actions for trial before a single jury pursuant to OCGA § 9-11-42 (a). The plaintiffs refused to consent to consolidation, as required under the provisions of OCGA § 9-11-42 (a), and the trial court denied the motion. Thereafter, citing “the nature of the actions, their complexity, and the time requirements of the actions for trial,” the trial court entered an order, sua sponte, ordering that a separate jury be empaneled to try each action and further ordering that both actions be simultaneously tried in the same courtroom with the juries in both actions simultaneously hearing all common evidence. Over UGTC’s objection to this procedure, separate trials in both actions were simultaneously conducted in the same courtroom. Virtually all the evidence in the liability phase of both trials was simultaneously presented to both juries.

As the dissent correctly points out, although for the wrong reasons, it was error for the trial court to order this procedure over the objection of UGTC. That error, however, does not require reversal in this case.

Contrary to the dissent’s conclusion, the trial court’s order was not controlled by OCGA § 9-11-42 (a). Section 9-11-42 (a), which was adopted from Rule 42 (a) of the Federal Rules of Civil Procedure, governs consolidation of separate cases on the court’s docket, or of issues within those cases, for trial before a single jury or trier of fact. This section and its provision that “the court may order a joint hearing or trial...” has never been interpreted as authority for ordering simultaneous trials before multiple juries in the same courtroom. See Wright & Miller, Federal Practice & Procedure, Vol. 9, Ch. 7, §§ 2381, 2382 (1995).

However, the consolidation provisions of OCGA § 9-11-42 (a) do provide guidance in addressing this issue. The primary purpose for consolidating separate actions for trial is the promotion of convenience and judicial economy in cases involving common questions of law and fact. Even in proper cases where judicial economy would be promoted, OCGA § 9-11-42 (a) clearly departs from the otherwise identical provisions of federal Rule 42 (a) by providing that consolidation may be ordered only if the parties consent. Robinson v. Hall, 177 Ga. App. 181 (338 SE2d 699) (1985), disapproved on other grounds, Stenger v. Grimes, 260 Ga. 838, 839 (400 SE2d 318) (1991). Similarly, the simultaneous trial of these actions before two juries, as ordered by the trial court, was prompted solely by considerations of judicial economy. This so-called dual or multiple jury procedure has been approved in numerous criminal cases in other jurisdictions as a means to avoid problems arising under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), and other general prejudice problems in joint criminal trials and as an economy measure. See Velez v. State, 596 S2d 1197, 1199-1200 (Fla. App. 3 Dist. 1992); United States v. Hayes, 676 F2d 1359, 1366-1367 (11th Cir. 1982); Smith v. DeRobertis, 758 F2d 1151 (7th Cir. 1985). In one civil case, the trial court ordered the simultaneous use of two juries in a complex air crash case as an economical means to apply the law of two different states to the evidence. Martin v. Bell Helicopter Co., 85 FRD 654 (D. Colo. 1980).

Without condoning its use as an economy measure in a case of this type nor condemning it in general, we conclude that, like consolidation, the procedure should not be forced on any party in a civil case who does not consent to it. Accordingly, the trial court erred by ordering the procedure over the objection of UGTC. Nevertheless, since harm as well as error must be demonstrated to warrant a rever-. sal, it must be shown how the procedure prejudiced the defendants in this case.

The defendants claim that, due to the dual jury procedure, one jury was deprived of continuous access to the blown tire during its deliberations while the tire was being used by the other jury. Even though the tire could not be used by both juries at once, there is nothing in the record showing that this prejudiced the defense. Both juries had access to the tire at one time or another during their deliberations, and there is no indication that either jury requested and was denied access to the tire. Moreover, the defendants made no claim in the trial court that lack of continuous access to the tire by both juries was error.

The defense claim that they were prejudiced by being deprived of the chance to employ different strategies before separate juries in separate trials is unpersuasive. Once again, the defendants did not make this claim during the trial so that the trial judge could consider allowing the presentation of any such defenses to one jury at a time. And the defendants were apparently not concerned with possible conflicting defenses when they moved for consolidation of the two cases for trial before a single jury.

The defendants’ allegations of “logistical difficulties” caused by the dual jury procedure, without any detailing of such difficulties or resulting prejudice, present nothing for review.

Lastly, the defendants claim that the inconsistent verdicts reached by the two juries with respect to punitive damages demonstrate that they were prejudiced by the dual jury procedure and require reversal. Although the inconsistency of the two verdicts was perhaps more dramatic because it occurred during the simultaneous trials of both cases, rather than in sequential trials before separate juries, two separate juries hearing the same evidence on the same issue may legally render inconsistent verdicts. Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270) (1982).

Since the defendants have not shown they were prejudiced as a result of the dual jury procedure ordered by the trial court, no reversal is required on this ground.

2. UGTC’s fourth enumeration alleges that it was reversible error for the trial court to order the addition of new party defendants in both cases three days prior to trial without service of process and over the objections of the added defendants. We concur.

In the case brought on behalf of the son, Ford III, the plaintiffs concede that in October 1990, pursuant to a consent order, the B. F. Goodrich Company was dropped as the defendant and Uniroyal Goodrich Tire Company, a partnership (“the partnership” for purposes of this division), was substituted as the party defendant. The plaintiffs also concede that, in the separate action brought by Mr. and Mrs. Ford, Jr., the complaint named Uniroyal Goodrich Tire Company as a defendant. The Uniroyal Goodrich Tire Company, a Delaware corporation (“the corporation” for purposes of this division), was served with process through its corporate agent.

In granting the plaintiffs’ motions to add parties, the trial court concluded that it was perfecting the style of the case and ordered that the corporation be added as a defendant in the action brought on behalf of Ford III and that the partnership be added as a defendant in the action brought by Mr. and Mrs. Ford, Jr. Neither the partnership nor the corporation was separately served with process in the actions to which they were added. Three days later, both cases were simultaneously tried before separate juries, and judgments were subsequently entered against the original and added defendants in both cases.

The trial court’s action did not merely perfect the style of the case or correct a misnomer but added new parties to each action. See Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481 (428 SE2d 381) (1993). The partnership and the corporation were distinct legal entities, neither of which had been previously named as a defendant or served in the actions to which they were added. A new defendant added by motion must be served with process in the usual way even if the added defendant has knowledge of the pending suit. Stone Mountain Aviation v. Rollins Leasing Corp., 174 Ga. App. 35, 36 (329 SE2d 247) (1985); Charming Shoppes &c. v. Parrish, 214 Ga. App. 729, 730-731 (448 SE2d 781) (1994). A judgment against added parties is null and void where there has been no valid service or waiver of service. DeJarnette Supply Co. v. F. P. Plaza, 229 Ga. 625 (193 SE2d 852) (1972); see Hap Farms v. Heard, 209 Ga. App. 684, 685 (434 SE2d 118) (1993).

Here, the added defendants timely objected to the addition without service, so there was no waiver. Id. at 685. Moreover, the record does not support the plaintiffs’ claims that the corporation and the partnership waived service by making general appearances in the cases to which they were added or that they otherwise consented to the jurisdiction of the court. Compare Hap Farms, supra at 685-686.

Although the plaintiffs claim that the similarly named corporation and partnership were not always clearly referred to during the litigation as separate entities, it is clear that the entity added as a defendant in the Ford III case was a corporation, not the partnership which had been properly served in that case. Also, the suit as originally filed by Mr. and Mrs. Ford, Jr. was served on a corporation, not the partnership added three days before trial. It was the responsibility of the plaintiffs to conduct an investigation to determine that the proper parties were named and served in each case. “Service on the proper party is the responsibility of the plaintiff, not the [party] accepting service.” (Citation and punctuation omitted.) Charming Shoppes, supra at 730-731. In fact, the plaintiffs eventually recognized the problem and sought to correct it by adding defendants. However, the required service was never accomplished.

Accordingly, the added defendants are not bound by the judgments entered in the cases in which they were not served. Moreover, since the judgments were joint as against both defendants in each case, including those defendants not served, the judgments are indivisible and must be reversed as to both co-defendants in each case. Knox v. Landers, 160 Ga. App. 1, 2 (285 SE2d 767) (1981); Medlin v. Church, 157 Ga. App. 876, 878 (278 SE2d 747) (1981); Ammons v. Horton, 128 Ga. App. 273 (196 SE2d 318) (1973).

3. Enumerations 20 and 22 deal with the award of punitive damages of $25 million in the son Franklin Ford Ill’s suit, Case Nos. A95A0465 and A95A0466, and are addressed together. The jury in Mr. and Mrs. Ford, Jr.’s action, Case Nos. A95A0468 and A95A0469, concluded that the defendants were not liable for punitive damages. Since this issue is likely to recur on retrial, we address the punitive damages.

This punitive damage award must be reversed for two reasons.

(a) The trial court charged the jury that: “The statutory law of Georgia provides that in a tort case in which the cause of action arises from product liability, 75 percent of any amounts awarded as punitive damages, less a proportionate part of the cost of litigation, including reasonable attorneys’ fees, shall be paid into the treasury of the state.” UGTC excepted to this charge and contends on appeal that this was error requiring reversal of the punitive damages award.

The charge given was a correct statement of a portion of subsection (e) (2) of OCGA § 51-12-5.1. “The clearly stated purpose of [OCGA § 51-12-5.1] is to punish and deter the defendant in a tort action.” Mack Trucks v. Conkle, 263 Ga. 539, 542 (436 SE2d 635) (1993). Subsections (e) (1) and (2) of the statute carry out this purpose with respect to the imposition of punitive damages in product liability actions and provide in general that, although there is no ceiling on the award of punitive damages, there may be only one such award against a defendant for any act or omission regardless of the number of causes of action that may arise from such act or omission, and that 75 percent of any such award will be paid into the state treasury. In discussing these limitations on the imposition of punitive damages under the statute in Mack Trucks, supra, the Supreme Court observed that they enforce “the legislature’s stated intent that the purpose of the statute is to punish the defendant, and not to provide compensation or, in our view, a windfall to an individual plaintiff. Rather, we think that the purpose of this subsection is to authorize punishment of a defendant who has the potential to greatly damage society at large. The statute furthers this purpose by not allowing the first plaintiff to reach the courthouse with a product liability lawsuit to reap a windfall from the punitive damages, but instead requiring that three-quarters of the punitive damages awarded be paid into the state treasury for the benefit of all Georgia citizens. Punishment and deterrence of the defendant being the purposes of the subsection, it is insignificant under the statute that the plaintiff does not receive the full award.” (Emphasis supplied.) Id. at 542.

It follows from the above analysis of the purposes of subsections (e) (1) and (2) that the sole concern of the jury under these subsections is to decide what amount of punitive damages will serve to punish and deter the defendant. It is no concern of the jury that the plaintiff will not receive the full award and that 75 percent of the award will be paid into the state treasury for the benefit of all Georgia citizens, including the members of the jury. It matters not a whit that some or all of the jurors may have already known that 75 percent of any award would be paid to the state, as the dissent contends. The point is that this information is not relevant to the jury’s consideration of punitive damages. Instructing the jury that the state would receive 75 percent of any punitive damages awarded created a substantial risk that the jury was improperly influenced by this consideration to adjust its award of punitive damages in a manner which prejudiced the defendants. Accordingly, the instruction was harmful error requiring reversal of the award of punitive damages.

(b) There was no evidence in the record to support the jury’s award of punitive damages. In order to award punitive damages under OCGA § 51-12-5.1 (b), there must be “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “ ‘Under OCGA § 51-12-5.1 (b) . . . it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .’ (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). ‘Mere negligence, although gross, will not alone (support) the recovery of punitive damages.’ (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989).” J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 256 (427 SE2d 499) (1993).

Although there was evidence of quality control problems at the plant where the tire at issue was manufactured, the bottom line was that the design of this type of tire complied with regulatory requirements and there was no evidence that the SP-7000 tire had previously caused an injury.¹ See Stone Man, Inc. v. Green, 263 Ga. 470 (435 ) (1993) (punitive damages generally not available where defendant has complied with applicable regulations governing the conduct at issue). Nevertheless, compliance with applicable design regulations will not preclude an award of punitive damages where there is other evidence that the manufacturer engaged in a deliberate course of conduct which knowingly endangered those using the product. General Motors Corp. v. Moseley, 213 Ga. App. 875, 884-885 (447 SE2d 302) (1994). But there is no such evidence of knowing endangerment in this case.

At best, the evidence shows continuing manufacturing and quality control problems at the plant, which were known to UGTC and which resulted in a higher than normal incidence of belt/tread separation problems with tires produced at the plant. However, there is no evidence that the SP-7000 tire at issue manufactured under these conditions had ever previously caused an injury. Thus, there is no clear and convincing evidence that UGTC was engaging in any type of “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” by which it knowingly placed the plaintiffs or others in danger of the type of accident and serious injuries suffered in this case. Accordingly, the trial court erred by denying the defendants’ motions for a directed verdict and judgment notwithstanding the verdict on punitive damages.* ²

, 4. Enumerations of error 5, 6, 7, and 8 concern the trial court’s refusal to dismiss NTW even though it was fully released prior to trial, refusal to allow defendants to inform the jury as to NTW’s true status in the case, and the trial court’s charge to the jury on a claim that was applicable only to NTW, even though UGTC was the only defendant named on the verdict forms.

(a) In enumeration of error 5, UGTC contends that the trial court erred in declining to dismiss NTW from the case. The record shows that on March 17, 1993, NTW entered into a Compromise Release Agreement with Franklin E. Ford III as to all of his claims against NTW. On that same date, NTW and Franklin Ford, Jr. and Claudia Ford entered into a Compromise Release Agreement. In these agreements, plaintiffs agreed to “release and discharge all claims” against NTW. NTW remained in the case, and on September 1, 1993, NTW cross-claimed against UGTC for indemnification. On January 18, 1994, UGTC subsequently cross-claimed against NTW for contribution. On March 10, 1994, the parties filed Dismissals with Prejudice as to both cross-claims. Because of the Compromise Release Agreements releasing NTW from all claims, UGTC and NTW filed a joint motion for dismissal of NTW. The trial court held a hearing on this motion on March 11, 1994. The trial court denied the motion to dismiss, basing its opinion on this court’s holding in Carney v. JDN Constr. Co., 206 Ga. App. 785 (426 SE2d 611) (1992). But, the appeal in Carney was the denial of a motion to transfer venue based on the plaintiff’s settlement with one of the joint tortfeasors, not whether the trial court erred in refusing to dismiss a party against whom there were no longer any claims pending. See Collipp v. Newman, 217 Ga. App. 674 (458 SE2d 701) (1995). Further, the record in Carney shows that the settlement agreement, with the amount of the settlement edited from it, was introduced into evidence at trial. Where parties have entered into a definite settlement agreement, “the trial court should make the agreement the judgment of the court, thereby terminating the litigation.” Smith v. Haverty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812) (1985) (quoting Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969)). Further, once the release had been signed, the claims against NTW disappeared and there was no justification for not granting NTW’s motion to dismiss when there was no longer any claim or controversy to be decided.

In addition, there is also the issue of the fundamental unfairness to UGTC inherent in forcing NTW to remain as a defendant, not defend at trial against any of the charges, and not inform the jury as to their status at trial. There is evidence in the record that plaintiffs’ counsel unfavorably compared NTW to UGTC and implied that NTW had admitted liability. For example, in closing, plaintiffs’ counsel made the following remarks about NTW: “But they’re not bad people. I believe they’re a good company. Not so for the other defendant.” Also, “They’re not disputing it. They’re not going to make excuses. They’re taking the responsibility.” These comments were misleading and improper, especially since the settlement documents explicitly stated that NTW denied liability as to any claims against it. Because the trial court refused to allow the settlement agreement to be introduced as evidence and refused to allow the parties to inform the jury of NTW’s true status, the jury was given the mistaken impression that one of the defendants had admitted fault. Therefore, we find alternatively, with regard to UGTC’s sixth and seventh enumerations, that if the trial court refused to dismiss NTW, it was error not to introduce the settlement agreement into evidence and allow the parties to inform the jury as to NTW’s status in the case. As previously discussed, plaintiffs’ counsel was allowed to create the impression that NTW had admitted liability, and this could have served only to unfairly influence the jury as to UGTC’s liability.

(b) UGTC’s eighth enumeration of error contends that the trial court erred in charging the jury on breach of warranty.³ The claim for breach of warranty was applicable only to the dismissed claim against NTW. There was no breach of warranty claim against UGTC. The warranty charge given by the court was as follows: “Negligence is not an element of breach of warranty. If goods do not conform to the warranty, the seller’s utmost care will not relieve him of liability.” However, the juries’ verdict forms did not provide for a verdict for or against NTW. Each jury returned a verdict solely as to UGTC. The Fords contend that the jury understood that the warranty claim was not against the manufacturer and could lie only against the seller. However, UGTC points out that it was referred to repeatedly as the seller of the tire. Therefore, it is highly probable that the jury applied the charge as to these warranty claims against UGTC. A charge which could confuse the jury as to the contentions of the parties and the real issues in the case is grounds for the granting of a new trial. Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (317 SE2d 583) (1984); Mitchell v. Gay, 111 Ga. App. 867, 871 (143 SE2d 568) (1965). Here, the charge was clearly confusing as there was no provision for returning a verdict against NTW. The jury could easily have applied this charge to the claims against UGTC, thus allowing plaintiffs to recover against UGTC on a basis not authorized by law. Overstreet, supra; Mitchell, supra. Accordingly, the trial court erred in giving the jury the breach of warranty charge. These errors mandate reversal of both judgments.

5. Enumerations 9 through 11 allege error in the trial court’s admission, over objections at trial as well as the denial of a pretrial motion in limine seeking exclusion, of evidence of recall notices of tires other than the SP-7000 (enumerations 9 and 10) and the study done by a UGTC employee of the number of “adjustments” (honored warranty claims) made for tires originating from the Tuscaloosa plant as well as several other plants (enumeration 11).

Under the facts of this case, such evidence should not have been admitted and was highly prejudicial to UGTC, and the motions in limine should have been granted in both cases as follows.

(a) The court’s order disposing of the motions in limine ruled, regarding the tire recalls: “Granted in part, denied in part. The fact that recalls were issued will not be permitted. However, plaintiffs will be permitted to introduce information contained in such recall memoranda for the limited purposes of impeachment and to establish defendant’s UGTC’s knowledge that vehicle vibration is symptomatic of impending belt separation.” (Emphasis supplied.)

Although the tires subject to the recalls were manufactured by UGTC, they were not the SP-7000 tire, which had never been subjected to a recall. The first recall involved 16-inch “Edge” and “Trail Edge” light truck tires, which were of a different load range, size, and category from the 15-inch SP-7000. No showing was made that the tire type was in any way similar, nor was any showing made that the belt or tread separation occurred in a similar fashion.

The second recall was of the “Lifesaver” tire, a passenger tire. Again, there was no showing that the tire was similar to the SP-7000. Further, the defect for which this tire was recalled was a “maldistribution of tread rubber in the shoulder area.” There was no evidence that such a maldistribution was in any way involved with the Ford accident or, in fact, had ever occurred in a SP-7000 tire.

“In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Mack Trucks v. Conkle, [supra]. ‘Without a showing of substantial similarity, the evidence is irrelevant as a matter of law. . . .’ Carlton Co. v. Poss, 124 Ga. App. 154, 155 (183 SE2d 231) (1971). See also Hayes v. Gary Burnett Trucking, 203 Ga. App. 693 (1) (417 SE2d 676) (1992).” (Emphasis supplied.) General Motors Corp. v. Moseley, supra at 877 (1). OCGA § 24-2-2.

While, in Moseley, the trial court acknowledged the requirement of “substantial similarity,” the court’s order in this case denying the motion in limine and her oral overruling of UGTC’s trial objections have totally disregarded this requirement, despite our previous holdings that such a requirement is a condition precedent to admissibility. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (2) (260 SE2d 20) (1979) (“The recall letter is admissible as long as there is first introduced some independent proof that the particular product in question suffered from the same defect. The recall letter alone is insufficient to create a jury issue of the presence of such a defect in the product.” It may be relevant on the issue of whether the defect was present when the item left the manufacturer.); Browning v. Paccar, Inc., 214 Ga. App. 496, 498 (1a, b) (448 SE2d 260) (1994) (Evidence of recall only admissible if “there is first introduced some independent proof that the particular product in question suffers from the same defect.”); Skil Corp. v. Lugsdin, 168 Ga. App. 754, 756 (1) (309 SE2d 921) (1983) (Where evidence of recall of a separate model is involved, the showing of significant similarity is of particular importance. Here, the lower blade guards on several saw models were designed and operated similarly by a spring-loaded mechanism, and evidence was produced to show it).

Further aggravating this problem, the court allowed the plaintiffs to redact portions of the unrelated recall letters, removing any reference to “recall.” Instead, the two bulletins are completely whited out with the exception of the bulletin numbers, dates, and the following heading: “Very Important Read Immediately! BULLETIN.” The first states that “Belt separation may also cause moderate to severe vehicle vibration. Continued operation could cause rapid air loss and vehicle crash.” The second states: “Belt edge separation could develop during normal driving conditions and may be noticed by slight to moderate vehicle vibration or the appearance of a bubble in the upper sidewall near the tread. Continued operation could cause rapid air loss and vehicle crash.” This second notice had not even been issued when the Fords purchased their tires, the time at which they claim they should have been given notice of the significance of any such vibration.

UGTC offered to stipulate that belt separation in any tire could cause vehicle vibration, which fact was known to UGTC. This stipulation, which would have obviated the need for the proof of this by the recall letters, was rejected. While we do not mean to imply that a party may preclude its opponent from tendering evidence by a stipulation, any such evidence must first be admissible and relevant before allowed.

In such a situation, as in Moseley, supra, the prejudice to the defendants cannot be ignored, particularly when they were precluded from explaining the contexts of the two unrelated notices.

The denial of the motions in limine requires reversal of both judgments.

(b) Also subject to the motion in limine was the “study” conducted by Hudson, a former employee of UGTC. The trial court’s order concerning the motion in limine stated that “Plaintiff may introduce evidence consisting of adjustment data and adjustment claim forms based on claims made for the subject tire and the common green tire for belt edge separation and tread separation condition codes only, provided such evidence is based on claims asserted prior to the date of NTW’s March 1988 sale of the subject tire. All hearsay shall be redacted from any adjustment claim forms.”

Hudson stated that, after the corporate merger of Uniroyal and Goodrich in August 1986, he was asked to do a survey of adjustments made by UGTC. The adjustment center was where tires returned by customers for any reason would be returned by the dealers to UGTC. A form for each tire was also sent. This “adjustment form” contained information supplied by the customer as well as the dealer, including a code number for the type of problem. Hudson had the center put aside tires from all of UGTC’s plants, including the Tuscaloosa plant where the Ford tire was made. He then went to the center and examined between 2,000 and 3,000 tires. He counted those tires which had belt separations as well as tread separations. The tires examined included all types of tires produced by UGTC. Hudson could not state that any of the examined tires were, in fact, the SP-7000. Although he was unclear about the time span of the study, he stated that he thought it was done in late 1987 and 1988. The tires examined could have been as old as seven years, or produced as early as 1980, and perhaps a few tires produced in 1989 were included.

Based on this examination, Hudson concluded that the “Tuscaloosa plant . . . produced more separations per volume of built tires than the other plants. Even though [another plant] might have produced more tires, had more separation. The percentage per thousand was more. ...”

Without question, at a minimum, the evidence allowed in through Hudson’s testimony was not in compliance with the court’s order. There was no showing made that any of the tires inspected from the Tuscaloosa plant were the SP-7000 or the “common green tire” batch involved. Further, no showing of similarity of the tires, defects, or the causes thereof was made.

“[T]he Supreme Court’s holding in Mack Trucks v. Conkle, supra, makes it clear that before such evidence is admissible for whatever appropriate use, there must be a showing of substantial similarity to the incident at issue. The plaintiffs failure to do so and the repeated breach of the trial court’s ruling on the motion in limine . . . constitute reversible error.” General Motors Corp. v. Moseley, supra at 878 (1). Engram v. Sonny Campbell’s Gulf, 200 Ga. App. 40, 42 (3) (406 SE2d 551) (1991) (Improperly filling a gas tank half-full with gasoline fuel instead of diesel held not similar to completely filling a tank with improper fuel).

This error mandates reversal of both judgments.

6. Because the error addressed in enumeration 16 is an evidentiary matter likely to recur on retrial, it is addressed.

UGTC contends that the trial court erred in allowing the Fords to argue that UGTC had resisted discovery and hidden evidence of prior deaths and injuries. UGTC cites Prevost v. Taylor, 196 Ga. App. 368 (396 SE2d 17) (1990), for the proposition that pretrial discovery disputes are irrelevant and inadmissible. UGTC further cites QCGA § 9-11-26 et seq. for the proposition that the court, not the jury, decides whether a party has complied with discovery and whether to impose sanctions. UGTC claims that the Fords’ charges that UGTC hid evidence of prior injuries was prejudicial and inflammatory and thus a new trial is required.

The Fords contend that evidence that they were forced to subpoena documents which UGTC should have relinquished under the notice to produce, but initially claimed were lost or destroyed, was properly admitted because the jury was authorized to take an adverse inference from UGTC’s actions. The Fords contend that this evidence was not accompanied by any argument regarding UGTC’s resistance to discovery.

OCGA § 24-4-22 states that when a party fails to produce evidence, a rebuttable presumption arises that the charge against the party is well founded. Because UGTC failed to produce evidence as required under the notice to produce, it was not improper to allow the jury to make an adverse inference from UGTC’s apparent initial attempt to hide evidence or avoid discovery. Therefore, this enumeration is without merit.

7. Similarly, the charge not given and addressed in the twenty-first enumeration is addressed.

UGTC contends that the trial court erred in failing to charge on the defense of third-party intervening cause because a defendant who creates a traffic hazard is not the proximate cause of injuries resulting from a third party’s negligent failure to avoid the hazard. UGTC contends that Rebecca Parsons, the driver of the station wagon that collided with the Fords’ van, qualified as a potential intervening and superseding cause of the injuries suffered by the Fords. Therefore, UGTC concludes that the court erred by not charging the jury on third-party intervening causation and a new trial is required.

The Fords contend that the principle of intervening superseding causation probably does not apply to strict liability cases where liability is not based on negligence, Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 (270 SE2d 883) (1980), and therefore the court was not required to charge on this principle. However, the Fords contend that even if it does apply, the trial court gave a standard, complete, and accurate charge on causation.

An intervening cause is not treated as the proximate cause if the defendant had reasonable grounds for apprehending that “(such wrongful act) would be committed.” Pinyan, supra at 348. “Vehicular collision is an event which is foreseeable by the manufacturer.” Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 339 (319 SE2d 470) (1984). Because UGTC could have foreseen that a defective tire could leave a vehicle stranded in the highway where an oncoming car might collide with it, the doctrine of intervening cause does not apply and this enumeration has no merit.

8. UGTC’s enumerations 12, 14, 15, 17, 18, 19, 23, 24, 25, and 26 were either not the subject of objection below, are moot because of the decisions rendered herein, without merit, or unlikely to occur at any retrial.

9. The Fords have filed cross-appeals in Case Nos. A95A0467 and A95A0470. The sole basis for these appeals is the contention that the trial court erred in failing to issue a proper rule nisi concerning the motions for new trial filed in each case by UGTC. These motions were denied by the trial court.

Since our decisions in the main appeals require retrial, any such issue is moot and these cross-appeals shall be dismissed. Lynas v. Williams, 216 Ga. App. 434, 436 (454 SE2d 570) (1995); General Motors Corp. v. Moseley, supra at 888 (10).

Judgment reversed in Case Nos. A95A0465 and A95A0466.

Birdsong, P. J., concurs. Beasley, C. J., Johnson, Smith and Ruffin, JJ., concur specially. McMurray, P. J., and Pope, P. J., dissent. Blackburn, J., not participating.

Judgment reversed in Case Nos. A95A0468 and A95A0469.

Birdsong, P. J., concurs. Beasley, C. J., Johnson, Smith and Ruffin, JJ., concur specially. McMurray, P. J., and Pope, P. J., dissent. Blackburn, J., not participating.

Appeals dismissed in Case Nos. A95A0467 and A95A0470.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., concurs in judgment only. Blackburn, J., not participating.

1 In enumeration of error 13, UGTC contends that the trial court erred by admitting FMVSS 573, a federal regulation dealing with recall notification and self-reporting to the National Highway Traffic Safety Administration when a product manufacturer determines that its product line is defective. Because there was no specific showing the SP-7000 tire was subject to recall or that UGTC violated FMVSS 573 with regard to the SP-7000 tire, the trial court erred in admitting FMVSS 573 for the purpose of proving punitive damages.

2 In reviewing a motion for directed verdict or judgment n.o.v., the trial judge and the appellate court have the same basic task. Both must determine as a matter of law whether the evidence was sufficient under the same standard: “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). The áppellate court must decide whether the trial court was right or wrong in applying this standard. See Gregory, Georgia Civil Practice, p. 505, § 6-17 (1990). Although cases also hold that the “any evidence” rule is the standard of appellate review of the trial court’s denial of a motion for a directed verdict (see Mattox v. MARTA, 200 Ga. App. 697, 698 (409 SE2d 267) (1991)), this should not be taken to imply that the appellate court will defer to the trial judge’s determination if there is “any evidence” whatsoever to support it. The issue on appeal remains whether or not there is “any evidence” sufficient under the applicable standard. In the case of punitive damages, the standard of review must also be applied in conjunction with the requirement under OCGA § 51-12-5.1 (b) that the evidence must be “clear and convincing.”

3 Appellees contend that this enumeration of error was not preserved for appeal because appellants did not object to the charge at the charge conference. However, after the jury charge, appellants specifically objected to the charge regarding breach of warranty and reiterated their position that NTW was not a proper party to the suit. That the objection was not made at the charge conference is immaterial. The requirement is that it must be made before the jury returns its verdict. OCGA § 5-5-24 (a).