Ronald Treadway v. Uniroyal Tire Company and Otasco, Inc.

¶1 In this appeal from a plaintiff's verdict in a manufacturers' products liability action, the appellant, who manufactured the automobile tire which the jury found caused the injury, submits three propositions of error. The appellant complains that a letter was improperly excluded from evidence, that an instruction was improperly worded, and that the verdict was excessive. In his answer brief, the appellee contends that the appellant's motion for new trial was defective because the motion was too vague and general to apprise the trial court of the reasons causing the appellant to seek relief, citing Horizons v. Keo Leasing Co., 681 P.2d 757 (Okla. 1984). We affirm the decision of the trial court.

¶2 On June 30, 1979, the appellee, a service station attendant, was attempting to mount a tire manufactured by the appellant when the tire burst and the resulting force fractured three bones in the appellee's wrist. The injury has limited the use and movement of the appellant's right hand. The appellee presented evidence that future surgery is likely. The appellee's theory in his prosecution of the case was that the tire was defective from the time of manufacture, and the defect caused the tire to burst while the appellee was airing up the tire. The appellant presented evidence at the trial to support its theory that the appellee failed to follow the instructions for properly mounting a tire, and that failure caused the tire to burst, and not any defect in the manufacturing process.

¶3 Horizons holds that a motion for new trial is insufficient to preserve any errors for appellate review if the motion is too vague and general to inform the trial court in a meaningful way of the reasons for the relief sought. An examination of the hearing on the motion reveals that the appellant argued three points of error which are also argued in its brief in chief. The only objection to these arguments was made at the very beginning of the hearing. After the trial court called the case, the appellee's attorney, without any explanation, objected to the motion.

¶4 Any lack of specificity in the language of a motion for new trial is cured at the hearing if the movant, "without any objection from the opposite party," precisely identifies each point of law which is fairly comprised in the general allegations of the defective motion. Horizons, 681 P.2d, at 759. The appellee argues that because Horizons uses the term "any" in describing objection, that the objection made should suffice. Such an objection is insufficiently specific and is no more effective than a nonspecific motion for new trial. An objection is not a mere marker to serve as a flag in locating potential legal errors for the preparation of an appeal. "The purpose of an objection in a trial is to call the court's attention to errors being committed so that the court, as well as the opposing party, will be advised and have an opportunity to correct them." Hodo v. Cox, 437 P.2d 249, 250 (Okla. 1967), quoting Ponca City [765 P.2d 940] Building & Loan Co. v. Graff, 189 Okla. 410, 117 P.2d 514, 518 (1941). We therefore find that the appellee waived any objection to the form of the appellant's motion for new trial by appellee's failure to state the grounds for his objection.

¶5 The argument in appellant's motion for new trial included three propositions of error: (1) that the trial court erred in refusing to permit the appellant's counsel to cross-examine appellee's expert concerning a certain letter sent by appellant to the expert; (2) that the trial court improperly instructed the jury on the appellant's defense of misuse; and (3) that the verdict of $750,000.00 was excessive. As no other propositions of error were argued to the trial court, no other issues shall be addressed by this Court, Horizons, 681 P.2d, at 759.

¶6 In the cross-examination of the appellee's expert, Mr. Loren Forney, the appellant attempted to have a letter admitted into evidence, dated November 8, 1983, which was less than a month before trial, that offered to allow Mr. Forney to visit one of the appellant's plants where he would be provided with a vulcanizer and a quantity of raw tires in order to demonstrate how the bead could be broken during the vulcanizing process. The bead is the inside edge of the tire which seals against the wheel. The trial court ruled that the probative value of the letter was outweighed by the danger of prejudice to the appellee. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, and such a ruling by the trial court will not be disturbed on appeal in the absence of a strong showing of prejudice to the proponent. Madill Bank and Trust Co. v. Herrmann, 738 P.2d 567, 571 (Okla. App. 1987). Although the letter was not allowed in to attack the credibility of the witness, appellant's counsel thoroughly cross-examined Mr. Forney. He subsequently questioned the appellant's expert concerning the impossibility of the bead breaking inside the vulcanizer which was the theory advanced by the appellee. We find no abuse of the trial court's discretion in refusing to admit the letter.

¶7 In his second assignment of error, the appellant argues that the trial court's instruction number seven was equivalent in effect of eliminating the misuse issue from the jury's consideration, thereby substantially prejudicing the appellant. That instruction reads:

Defendants contend the plaintiff misused the Uniroyal tire, and defendant has the burden of proving such misuse as a defense.

Misuse of a product is where the method of using a product was not that which the manufacturer intended, or was it a use not reasonably anticipated by the manufacturer.

If the plaintiff was using the product in a manner that was foreseeable or could have been anticipated by the defendant, it is not misuse even if the plaintiff has been careless in that use.

¶8 In objecting to the wording of this instruction during the trial, the appellant asked the court to instruct that the tire could be misused if the appellee used the product in direct contravention of a legally sufficient warning which was on the product. The appellant argues in its brief that although the instruction given may have been an accurate statement of the law, it should have been tailored to fit the facts of the case.

¶9 The evidence shows that the instructions referred to specifically warn always to lubricate both beads and rim flanges with the proper solution which is described; always use a tire mounting machine with a hold-down device to inflate a tire but never inflate a tire which is lying on the floor or other flat surface; never to inflate to seal the beads without using an extension hose with a guage and a clip-on chuck; never to stand next to or lean over a tire and wheel while inflating; and never to exceed 40 psi pressure. The warning continues that failure to follow the safety precautions may result in serious injury. The evidence is uncontested that the appellee took the tire from the mounting device in order to finish inflating it. He attempted to air the tire on [765 P.2d 941] the ground in order to seal the beads, and after checking the air pressure, he reached over the tire and it burst, injuring him. Whether or not he properly lubricated the beads or exceeded the air pressure was contested. The issue is whether the failure to follow the instructions in this case constitutes misuse.

¶10 In establishing manufacturer's products liability in this State, the case of Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974) set out three defenses to this tort. The first is that the defective product did not cause the injury. The burden of proof for causation is on the plaintiff, and the record in the case at bar reveals that the trial court so instructed. The plaintiff must prove that the defect directly caused his injuries. The other two defenses to manufacturer's products liability, abnormal use and voluntary assumption of the risk of a known defect, are affirmative defenses and must be pled or they are waived. RST Service MFG., Inc. v. Musselwhite, 628 P.2d 366 (Okla. 1981). Kirkland uses the term "abnormal use" interchangeably with "misuse." Misuse was pled by the appellant in its answer.

¶11 Abnormal use or misuse of a product occurs where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer. Fields v. Volkswagen of America, Inc., 555 P.2d 48, 56 (Okla. 1976). As Fields observes, a distinction must be drawn between use for an abnormal purpose and use for a proper purpose but in a careless manner. The latter use would properly be described as contributory negligence, which is not a defense to manufacturer's products liability cases. Negligence in the use of a product does not bar recovery under this tort even though the negligence "contributed" to the accident. Fields, 555 P.2d, at 57. As there is no dispute that the appellant could reasonably anticipate that a tire may be inflated on the ground, off of a mounting machine, such action does not constitute misuse even though the appellee failed to follow the appellant's instructions. Such a failure could only be called contributory negligence.

¶12 The failure to follow the appellant's instructions is an issue of causation. The evidence if viewed in the light most favorable to the appellant would be that appellee's failure to inflate the tire on the mounting machine resulted in an overinflation and an explosion which injured the appellee, and that such an injury would have been prevented if the tire had been on the mounting machine. The appellant denied that the tire left the factory with any defect. The appellee's theory was that the tire was defective from the factory, that the appellee properly handled the tire except for the fact that he inflated it on the ground, and that the defect in the tire's bead was what caused the explosion. The appellee's expert stated that the appellee could have been injured even if he had left the tire on the mounting machine. The jury chose to believe the appellee. The issue is causation, and causation was correctly instructed upon. We find no error in the instruction given by the trial court on the issue of misuse.

¶13 The appellant's third and final assignment of error is whether the jury's verdict was excessive. The issue of damages in a personal injury action is left to the jury and before the jury verdict can be set aside as excessive, the award must strike mankind, at first blush as being beyond all measure unreasonable and show the jury to have been activated by passion, partiality, prejudice or corruption. Dodson v. Henderson Properties, Inc., 708 P.2d 1064, 1066 (Okla. 1985). We have also held that there can be no absolute standard to measure such damages, that the jury is given a wide latitude of discretion, and that a verdict will not be set aside for excessive damages unless the jury clearly committed some gross and obvious error, or acted under some improper bias, influence, or prejudice, or has totally mistaken the rules of law by which damages are regulated. Carraco Oil Co. v. Morhain, 380 P.2d 957, 960 (Okla. 1963). In the hearing on the motion for new trial counsel for appellant stated that he could not determine what [765 P.2d 942] could have caused the passion and prejudice he was alleging. He could only state that an award of $750,000 for the injuries received by the appellee was outrageous. The appellant correctly states that the amount of a verdict may be enough to indicate that the jury was in part motivated by prejudice and passion. St. Louis-San Francisco Railway Co. v. Fox, 359 P.2d 710, 716 (Okla. 1961).

¶14 The evidence reveals that the appellee fractured bones in his right wrist, that the fractures necessitated surgery, that one of the bones did not properly heal, and appellee's physicians stated that a wrist fusion operation was recommended to alleviate the pain caused by traumatic arthritis. He has suffered a significant loss of grip, and if fused, the wrist would lose more movement. The appellee presented the following evidence of damages:

Past Wages $ 6,885.00

Future Wages 120,328.00

Past Medical 3,234.00

Future Medical 5,000.00

TOTAL $135,447.00

The trial judge instructed the jury to take into consideration the following elements of damages:

A. His physical pain and suffering, past and future;

B. His mental pain and suffering, past and future;

C. His age;

D. His physical condition immediately before and

after the accident;

E. The nature and extent of his injuries;

F. Whether the injuries are permanent;

G. The physical impairment;

H. Loss of earnings time;

I. Impairment of earning capacity;

J. The reasonable expenses of the necessary medical

care, treatment, and services, past and future.

At the time of trial the appellee had a life expectancy of 43.35 additional years, and his physical activities such as handiwork around the house, sports activities, and his ability to play his guitar were greatly restricted. The trial court instructed that the total amount awarded should not exceed $1,562,705.00, which was the amount sued for. The jury awarded less than half that amount. We find no abuse of the jury's discretion in the award.

AFFIRMED.

¶15 DOOLIN, C.J., HODGES, J., and BAILEY, S.J. (appointed in place of SUMMERS, J., who disqualified), concur. KAUGER, J., concurs by reason of stare decisis.

¶16 HARGRAVE, V.C.J., and LAVENDER, OPALA and SIMMS, JJ., dissent.

HODGES, Justice specially concurring.

¶1 I agree with the result of this Court's decision today. I also find no reversible error in the instruction given by the trial court on the issue of product misuse.

¶2 The giving of an erroneous instruction will not warrant reversal of the trial court's judgment unless it appears the jury was misled thereby, resulting in a miscarriage of justice. Kirkland v. General Motors Corporation, 521 P.2d 1353, 1367 (Okla. 1974); Seay v. General Elevator Company, 522 P.2d 1022, 1028 (Okla. 1974). In my view, the misuse instruction was not such that the jury would have rendered a different verdict.

¶3 Upon examination of the entire record I find there was no evidence which warranted invocation of the affirmative defense of misuse as previously defined by this Court in Smith v. United States Gypsum Co., 612 P.2d 251 (Okla. 1980); Fields v. Volkswagen of America, Inc., 555 P.2d 48, 56-57 (Okla. 1976). Here, Treadway was mounting the tire, obviously a use for a proper purpose, but purportedly in a careless manner inasmuch as he did not follow the safety instructions and warnings of Uniroyal. In addition, Treadway's conduct was reasonably foreseeable by Uniroyal. Treadway's conduct constituted at most contributory negligence and as such cannot be considered as a complete defense in a manufacturers' products liability case, unless this conduct was the sole cause of the accident. Smith v. United States Gypsum [765 P.2d 943] Co., 612 P.2d 251, 256 (Okla. 1980), Fields v. Volkswagen of America, Inc., 555 P.2d at 57.

¶4 Uniroyal claims the dispositive issue is: "Does failure to follow a legally sufficient warning constitute misuse of a product?" If Uniroyal's analysis is correct, then the trial court should have directed a verdict in its favor. But that is not the correct issue in this case. It is not denied that Treadway did not follow Uniroyal's tire mounting instructions. Nor does Treadway contend the instructions and warnings were insufficient. Treadway claims there was an unreasonably dangerous defect in the tire because of a manufacturer's flaw. He does not base his claim on a defective product design or inadequate warning.

¶5 Consequently, the determinative issue is what caused the tire to explode. Did the tire explode because Uniroyal manufactured a defective tire or did the tire explode solely because of the manner in which Treadway mounted the tire in violation of Uniroyal's written instructions (use for the intended purpose but in a negligent manner)? Uniroyal cannot create a defective tire which causes injury and then excuse its liability by the claim that sufficient adequate warning was given.

¶6 Upon examination of the record and transcript it appears that there was expert testimony which would support either position concerning causation. Treadway's expert witness testified that putting a tire on a mounting machine does not prevent the tire from exploding. The witness further testified that even if the tire rim is "fastened to the machine and the tire explodes, that doesn't necessarily at all mean that it's not going to - that it's going to keep the tire on the machine." As the majority put it, "The jury chose to believe the appellee." Consequently, Uniroyal's claimed misuse became irrelevant because the jury found the defective tire was the direct cause of the explosion, not Treadway's purported negligent conduct or use of the tire. From my examination of the record, there was competent evidence for the jury to find the defect caused the explosion.

¶7 The only jury instruction Uniroyal was entitled to, which the trial court failed to give, was a charging instruction which would inform the jury that if they found the sole cause of the accident was Treadway's negligent use of the product, i.e., failure to properly follow Uniroyal's mounting instructions, then they should render a verdict for Uniroyal. Instead, the trial court gave the following instruction, number 7:

"Defendants contend Plaintiff misused the Uniroyal tire and Defendant has the burden of proving such misuse as a defense.

"Misuse of a product is where the method of using a product was not that which the manufacturer intended or was a use not reasonably anticipated by the manufacturer.

"If the Plaintiff was using the product in a manner that was foreseeable or could have been anticipated by the Defendant, it is not misuse even if the Plaintiff may have been careless in that use."

¶8 In jury instruction number 9,1 the trial court told the jury that if the evidence shows Treadway was guilty of misuse as defined in the above instruction number 7, then their judgment should be for Uniroyal and against Treadway.

¶9 The effect of the above two instructions was a less stringent burden of proof for Uniroyal's defense of Treadway's alleged negligent conduct. Under the court's instructions, Uniroyal would be entitled to a verdict even if Treadway's negligent conduct or use of the defective product was merely a contributing factor causing the injury to occur, rather than the sole cause of the accident. Negligent conduct or use of the product by a plaintiff which does not [765 P.2d 944] amount to misuse is not a bar to a plaintiff's claim unless such conduct is the sole cause of the plaintiff's injury. If the defendant manufacturers a defective product which causes injury to a person and that person's negligent use of the product was only a contributing factor, then in that event such conduct is not a complete defense in a manufacturers' products liability case.

¶10 It is well settled that a party may not complain on appeal of an erroneous instruction that is more favorable to that party than it is entitled to and the giving of the instruction does not constitute reversible error. Taylor v. Birks, 325 P.2d 737, 740-41 (Okla. 1958). It therefore follows that the trial court's erroneous instruction of the defense of misuse was not prejudicial and therefore is harmless error.

¶11 With regard to appellant's assertion that the jury's verdict was excessive, I agree with this Court's rejection of this contention. I may add that initially the verdict of $750,000 appears somewhat shocking. But upon review of the evidence there is absolutely no bias or prejudice shown in the record to support a remittitur or a new trial. The amount of damages awarded is the prerogative of the jury and this Court has no right to interfere absent a finding "the jury were activated by prejudice or guilty of abuse and passionate exercise." Dodson v. Henderson Properties, Inc., 708 P.2d 1064, 1066 (Okla. 1985).

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¶12 In sum, I concur in affirming the judgment of the trial court.