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July 18, 1997

RONALD WEST and DAPHNE WEST, as Husband and Wife, Plaintiffs,

The opinion of the court was delivered by: OWEN

 OWEN, District Judge

 Plaintiff Ronald West *fn1" was injured in 1991 by an exploding tire when he mounted a 16" tire manufactured by defendant Goodyear Tire & Rubber Company ("Goodyear") on a 16.5" wheel manufactured by defendant The Budd Company ("Budd"). Plaintiffs seek from each defendant $ 2,000,000 in compensatory damages and $ 5,000,000 in punitive damages. Defendants bring a motion in limine to strike plaintiffs' claim for punitive damages which I will treat as a motion for summary judgment pursuant to Rule 12(b). *fn2"

 West was the owner of a body shop which he operated since the mid-1970's. On January 5, 1991, a customer asked West to mount two tires for use on his pick-up truck. The tires were clearly marked "16LT" indicating that they were 16" light truck tires. There was also a warning embossed in small black letters on the black rubber of the tire which said: "Mount only on 16" rims." West, however, believing them to be 16.5" tires, neglected to check the size and proceeded to mount the tires on two 16.5" rims which he had in his shop. West claims that he inflated the first tire without incident, but when he mounted the second and filled it with air, it exploded, causing injuries to West's hand which resulted in ten days of hospitalization, three surgical procedures, and alleged residual hand damage. The 16.5" rim was manufactured by Budd in 1980. The exploding 16" tire was manufactured by Goodyear in 1986 and contained a multi-strand weftless bead *fn3" constructed of wires with a diameter of .037".

 In his deposition, West stated that he thought that the tires he was given to mount were 16.5" because the customer owned a pick-up truck and West believed that all pick-up trucks were equipped with 16.5" tires. This belief, according to West, was based on the fact that West himself owned a pick-up truck in 1987 or 1988 which was equipped with 16.5" tires. West states that he was altogether unaware of the existence of 16" tires despite the fact that, at the time of the accident, he himself also owned a 1984 pick-up truck equipped with 16" tires.

 West further stated that the only accidents resulting from exploding tires of which he was aware involved split rims on bigger trucks. West, of Jamaican birth, while English speaking, asserts that he is not a good reader and also asserts that he was not aware of any safety information generally printed on tires and rims. He did admit receiving some information from tire and rim manufacturers, although West stated he could not really read the printed material and so he piled it up and discarded it. *fn4"

 The standard for an award of punitive damages in New York is a demanding one. Plaintiff must show the defendant's conduct to be "so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" and that the conduct demonstrates a "high degree of moral culpability." Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615 (3d Dept. 1992)(citations omitted). In Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 842-43 (2d Cir. 1967)(citations omitted), the Second Circuit noted that New York courts have used a variety of phrases to describe the "moral culpability" that will support punitive damages for nonintentional torts including: "utter recklessness," Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282, 296 (1872); "reckless and of a criminal nature, and clearly established," Cleghorn v. New York Cent. & H.R.R.R., 56 N.Y. 44, 48 (1874); "wanton or malicious, or gross and outrageous" or "a design to oppress and injure," Powers v. Manhattan Ry., 120 N.Y. 178, 182, 24 N.E. 295 (1890); "conscious indifference to the effect of his acts," Gostkowski v. Roman Catholic Church of the Sacred Hearts of Jesus and Mary, 262 N.Y. 320, 323, 186 N.E. 798 (1933); action "committed recklessly or wantonly, i.e., without regard to the rights of the plaintiff, or of people in general," Soucy v. Greyhound Corp., 27 A.D.2d 112, 276 N.Y.S.2d 173, 175 (3d Dept. 1967). In summary, the Second Circuit held that "the recklessness that will give rise to punitive damages must be close to criminality" and like criminal behavior, it must be "clearly established." Roginsky 378 F.2d at 843 (2d Cir. 1967)(citations omitted). In Karen S. v. Streitferdt, 172 A.D.2d 440, 568 N.Y.S.2d 946, 947 (1st Dept. 1991) the court stated "even where there is gross negligence, punitive damages are awarded in 'singularly rare cases' such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public." (citations omitted).

 Plaintiffs claim that defendants' actions meet this standard of moral culpability and at trial they plan to support this claim through the testimony of an expert witness as well as documents offering a detailed history of the 16"/16.5" mismatch problem which began in the early 1970's. The first documented mismatch explosion of a 16" Goodyear tire with a 16.5" wheel occurred on August 13, 1971 and since then, plaintiff claims that Goodyear has been involved in at least 25 mismatch cases. The initial mismatch occurrence involving a Budd 16.5" rim took place on May 28, 1975 and since that time, plaintiff claims that Budd has been implicated in 142 similar mismatch claims. *fn5"

 Plaintiffs also claim that both Goodyear and Budd were on notice of the mismatch problem through their participation in trade associations--The Tire and Rim Association ("TRA") and the Rubber Manufacturers Association ("RMA")--where the mismatch dilemma was discussed as early as May 1972 at the TRA Board of Trustees meeting. Plaintiffs further claim that, despite defendants' knowledge of the problem, they failed to take adequate action.

 For example, plaintiffs maintain that safer and feasible alternative designs for the tire and the rim were available to both manufacturers. Plaintiffs assert that Goodyear conducted tests in the 1970's which showed that tires manufactured with a hex bead *fn6" design coupled with a higher gauge wire would withstand higher pressure before breaking. They claim that changing the design of the tire bead using wires with a diameter greater that the .037 gauge wire utilized in the tire that exploded or using a single strand hex tire bead in place of the weftless multi-strand tire bead used in the exploding tire would have decreased the danger of explosion in the case of a mismatch. Moreover, plaintiffs assert that Goodyear was manufacturing 16" radial tires with a single strand hex bead as early as the late 1970's and could therefore have used the same design in the 16" bias ply light tires as well.

 As to a feasible design modification of the 16.5" rim to prevent the mounting of 16" tires, plaintiffs claim in their statement of facts, without offering evidence, that safer alternative wheel designs were available to Budd. However, in their opposition papers, they recognize that the TRA's efforts to modify the 16.5" rim were unsuccessful. They fault Budd, however, for introducing a 16.5" rim into the U.S. market when 16" tires already existed. Plaintiff also faults Budd for continuing to manufacture 16.5" wheels for some years after 1979 when the TRA recommended that new programs produce only the 16" wheel and tire system. *fn7"

 Additionally, plaintiffs plan to offer expert testimony to show that both Goodyear and Budd failed to adequately warn users that both 16" and 16.5" rims and tires exist and that there is danger of mismatch; that if a 16" tire is mounted on a 16.5" rim there is a danger of explosive separation which could cause injury or death; and that defendants failed to recall or instruct users to discontinue use of 16.5" rims and 16" tires with multi-strand weftless beads manufactured from wires of a diameter less than .050". They claim that, while both the Goodyear tires and Budd wheels are size-stamped, nevertheless the warning embossed on Goodyear's 16" tires is black on black and is too small to be noticed and, furthermore, does not inform the user that mounting a 16" tire on a 16.5" rim could result in death. They also contend that the fact that Budd declined to place a similar warning on its 16.5" rims is evidence of morally culpable and reckless conduct.

 As further proof of defendants' wanton and reckless conduct, plaintiffs offer the fact that when Japanese and Korean manufacturers were considering exporting 15.5" wheels for use in the United States, defendants took action through their trade associations to discourage placement of half-size wheels in the U.S. market because of the potential for serious mismatch occurrences. Plaintiffs claim that this position was contradictory to Goodyear's conduct in the United States by failing to warn or instruct the ...

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