United States District Court, D. Nebraska
RYSTA LEONA SUSMAN, Both Individually and as Legal Guardian of Shane Allen Loveland; and JACOB SUMMERS, Plaintiffs,
THE GOODYEAR TIRE & RUBBER COMPANY, Defendant.
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
matter is before the Court on several motions. For the
reasons discussed below, Plaintiffs' Motion for Summary
Judgment, ECF No. 105, will be granted in part;
Plaintiffs' Motion in Limine to Apply Ohio Law on
Punitive Damages, ECF No. 106, will be granted; and the
Motion of Defendant The Goodyear Tire & Rubber Company
(Goodyear) for Partial Summary Judgment, ECF No. 107, will be
granted in part.
summary judgment motion does not contain numbered paragraphs
setting out disputed or undisputed material facts, and their
brief does not respond directly to Goodyear's numbered
paragraphs. The following facts appear from the record
to be undisputed unless otherwise indicated.
15, 2015, Shane Allen Loveland and Jacob Summers were
passengers in a pickup truck driven by Larry Blair in Hall
County, Nebraska, when the right rear tire suffered a
disablement. Plaintiffs allege that as a result of this
disablement, the vehicle operator was unable to maintain a
straight line of travel and the truck left the roadway,
crossed into the median, and rolled over. Plaintiffs also
allege that as a result of this rollover, Loveland sustained
significant brain injuries, and Summers suffered significant
orthopedic injuries. Blair was an employee of Dandee Concrete
Construction (Dandee), the owner of the vehicle. The tire at
issue was an LT235/85R16 Goodyear Wrangler HT tire with the
serial number DOT MD0RNJHV244. It was manufactured by
Goodyear in Gadsden, Alabama, in 1994. Goodyear is an Ohio
corporation, with its principal place of business in Ohio.
31, 2017, Plaintiffs initiated this action against Goodyear
and other defendants with similar names in the Philadelphia
County Court of Common Pleas, ECF No. 1-1. On August 7, 2017,
Goodyear removed this action to the U.S. District Court for
the Eastern District of Pennsylvania, ECF No. 1. On March 9,
2018, Judge Joel H. Slomsky dismissed all defendants other
than Goodyear, ECF No. 28. On March 22, 2018, Judge Slomsky
transferred the case to this Court upon stipulation by the
parties, ECF No. 31. On August 12, 2019, Plaintiffs moved for
summary judgment, ECF No. 105, and filed a Motion in Limine
to apply Ohio law regarding punitive damages, ECF No. 106.
Goodyear moved for partial summary judgment, ECF No. 107.
judgment is proper ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of
law.'” Cottrell v. Am. Family Mut. Ins. Co.,
S.I., 930 F.3d 969, 971 (8th Cir. 2019) (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc)); see also Fed. R. Civ. P.
56(c) (“A party asserting the fact cannot be or is
genuinely disputed must support the assertion by: citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations[, ] . . .
admissions, interrogatory answers, or other materials . . .
.'”). A genuine issue of material fact arises
“if each party has supplied some evidence that is
sufficient for a reasonable jury to return a verdict for the
nonmoving party”. Cottrell, at 930 F.3d at 971
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
moving party bears the burden of showing ‘that there is
no genuine dispute as to any material fact and [it] is
entitled to judgment as a matter of law.'”
Vandewarker v. Cont'l Res., Inc., 917 F.3d 626,
629 (8th Cir. 2019) (quoting Fed.R.Civ.P. 56(a)). The moving
party can satisfy its burden in two ways: (1) by producing
evidence negating an essential element of the nonparty's
case; or (2) “by ‘showing' . . . that there
is an absence of evidence to support the nonmoving
party's case.” Bedford v. Doe, 880 F.3d
993, 996 (8th Cir. 2018) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)).
response to the moving party's showing, the nonmoving
party must produce evidentiary materials of “specific
facts showing the presence of a genuine issue for
trial.” Id. (quoting Torgerson, 643
F.3d at 1042). “The nonmoving party must do more than
raise some metaphysical doubt about the material facts and
cannot rest on mere denials or allegations.”
Id. (citing Torgerson, 643 F.3d at 1042;
Gibson v. Am. Greetings Corp., 670 F.3d 844, 853
(8th Cir. 2012)); see also Dick v. Dickinson State
Univ., 826 F.3d 1054, 1061 (8th Cir. 2016)
(“[T]here must be more than ‘the mere existence
of some alleged factual dispute' between the
parties in order to overcome summary judgment.”)
(emphasis in original) (quoting Vacca v. Viacom Broad. of
Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
summary judgment, the court's function is not to weigh
the evidence and determine the truth of the matter itself,
but to determine whether there is a genuine issue for
trial.” Smith v. Kilgore, 926 F.3d 479, 483
(8th Cir. 2019) (quoting Schilf v. Eli Lilly &
Co., 687 F.3d 947, 948 (8th Cir. 2012)); see also
Bedford, 880 F.3d at 996 (“A principal purpose of
the summary-judgment procedure ‘is to isolate and
dispose of factually unsupported claims or defenses . . .
.'”) (quoting Celotex, 477 U.S. at
323-24). Accordingly, in reviewing a motion for summary
judgment, the Court will “view the record in the
light most favorable to [the nonmoving party] and draw all
reasonable inferences in [that party's] favor.”
Hanson ex rel. Layton v. Best, 915 F.3d 543, 547
(8th Cir. 2019) (quoting Krout v. Goemmer, 583 F.3d
557, 564 (8th Cir. 2009)). “‘Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial,' and summary judgment is appropriate.”
Vandewarker, 917 F.3d at 629 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Motion for Summary Judgment seeks dismissal of Goodyear's
affirmative defenses. Plaintiffs' Motion in Limine seeks
an Order from the Court stating that Ohio law will apply to
Plaintiffs' demand for punitive damages. Goodyear's
Motion for Partial Summary Judgment seeks dismissal of
Plaintiffs' claims to the extent they rely upon the
theory that Goodyear's negligent or defective design of
the tire's anti-oxidative measures caused the
disablement. Goodyear also seeks dismissal of Plaintiffs'
claim for punitive damages.
Goodyear's Affirmative Defenses
First Amended Answer, ECF No. 72, Goodyear lists several
affirmative defenses. Plaintiffs seek summary judgment
dismissing Goodyear's affirmative defenses of (1)
comparative fault or contributory negligence, (2) failure to
use a seatbelt, (3) efficient intervening cause, (4) misuse,
(5) substantial alteration, and (6) assumption of risk. ECF
No. 105. Goodyear only argues against dismissal of its
defenses of failure to use a seatbelt, efficient intervening
cause, and misuse. The affirmative defenses of comparative
fault or contributory negligence, substantial alteration, and
assumption of risk are deemed abandoned and will be
dismissed. See NECivR 39.2(c).
Failure to Use a Seatbelt
Nebraska law, evidence of seatbelt misuse or nonuse
“shall not be admissible in regard to the issue of
liability or proximate cause but may be admissible as
evidence concerning mitigation of damages, except that it
shall not reduce recovery for damages by more than five
percent.” Neb. Rev. Stat. § 60-6, 273. Plaintiffs
have stipulated to a 5% reduction in damages, ECF No. 105-1,
therefore Goodyear is precluded from offering evidence of
seatbelt nonuse or misuse. See Shipler v. Gen. Motors.
Corp., 710 N.W.2d 807, 833 (Neb. 2006) (holding that the
trial court was correct to determine evidence of seatbelt
misuse or nonuse was inadmissible because plaintiff
stipulated to a 5% reduction in damages). Goodyear may not
offer any evidence related to seatbelt misuse or nonuse by
Loveland and Summers.
Efficient Intervening Cause
claims “[t]he conduct of individuals and/or entities
other than Goodyear-over whom/which defendant Goodyear had no
control-constitutes a superseding, intervening cause of the
incident, injuries, and damages alleged by plaintiffs.”
First Am. Answer ¶ 9, ECF No. 72. The Nebraska Supreme
Court has instructed trial courts applying Nebraska law to
“discontinue the practice of separately instructing
juries on ‘efficient intervening cause' in favor of
the more direct and clear instructions based on the concept
of proximate or concurring cause . . . .” Sacco v.
Carothers, 567 N.W.2d 299, 306 (Neb. 1997); see
also NJI2d Civ. 3.43. Goodyear is free to argue that its
own actions were not a proximate cause of Plaintiffs'
injuries, but, as Nebraska law does not recognize efficient
intervening cause as an affirmative defense, that affirmative
defense is dismissed.
contends that “Plaintiffs' claims may be barred
and/or recovery may be limited by misuse by some or all of
the plaintiffs and/or others' failure(s) to properly care
for or maintain the Subject Tire.” First Am. Answer
¶ 13, ECF No. 72. To prove the affirmative defense of
misuse, a defendant must show “(1) that the plaintiff
used the product as claimed by the defendant, (2) that the
defendant could not reasonably have foreseen such a use, and
(3) that this misuse by the plaintiff was a proximate cause
of his own injury.” Wedgewood v. U.S.
Filter/Whittier, Inc., No. A-09-1280, 2011 WL 2150102,
*10 (Neb. Ct. App. May 31, 2011) (citing Jay v. Moog
Auto., Inc., 652 N.W.2d 872 (Neb. 2002); NJI2d Civ.
11.25). The defense of misuse only requires that the
defendant show the misuse was “‘a' proximate
cause of [the plaintiff's] injury (as opposed to being
‘the' proximate cause of the injury-causing
accident).'” Keaschall v. Altec Indus.
Inc., No. 4:14CV3070, 2017 WL 3084393, *7 (D. Neb. July
19, 2017). Misuse is a defense to strict liability and
negligence. Erickson v. Monarch Indus., Inc., 347
N.W.2d 99, 108 (Neb. 1984). Although the Nebraska Supreme
Court has not specifically decided that third-party misuse is
a defense to strict liability, it is the majority rule among
courts that have decided the issue. See Randy R.
Koenders, Annotation, Products Liability: Product Misuse
Defense, 65 A.L.R. 4th 263, §§ 9-10 (1988).
Misuse by a third party can defeat a strict liability action.
Carlson v. Freightliner LLC, 226 F.R.D. 343, 358 (D.
Neb. 2004). Therefore, if there are admissible facts from
which a reasonably jury could find that plaintiffs' or a
third-party's misuse of the tire was a proximate cause of
plaintiffs' injuries, then the plaintiffs are not
entitled to summary judgment on the issue of misuse.
defense of misuse can be summarized as follows: (1) the tire
was underinflated or overloaded, causing overdeflection; (2)
the warnings and instructions provided by Goodyear made such
use was unforeseeable; and (3) the overdeflection was a
proximate cause of the tire's malfunction. Goodyear's
expert witness, Joseph Grant, stated in his report that there
is the following evidence of overdeflection: “a) the
rim line polishing to grooving on both sides of the tire 360
degrees, b) the multi-level radial tear lines on the serial
side and opposite serial side belt edges, and c) the polished
worn flanges on the wheel with some black rubber
transfer.” Grant Rep. 14, ECF No. 127-7. Grant also
indicated that overdeflection can occur by
“overloading, underinflation or a combination of
both.” Id. It is undisputed that the tire at
issue included the load and inflation pressure on the
sidewall of the tire. The Nebraska Supreme Court has stated
that a “seller is entitled to have his due warnings and
instructions followed . . . .” Erickson, 347
N.W.2d at 108 (citations omitted). While Grant stated that
this overdeflection alone did not cause the tire to fail, he
indicated that it made the tire more susceptible to failure.
Pls.' Br. 2, ECF No. 132. Misuse need not be the
proximate cause of the plaintiffs' injury, but only
a proximate cause. See Keaschall, 2017 WL
3084393, at *7. There is sufficient evidence in the record to
support Goodyear's affirmative defense of misuse.
also argue that any claim of misuse on the part of Summers
and Loveland's employer or its agents is prohibited by
Downey v. Western Community College Area, 808 N.W.2d
839 (Neb. 2012). In Downey, the court examined
whether an injured employee's employer was considered a
“released person” for purposes of Nebraska's
comparative negligence statute. Id. at 851-54. The
Downey court determined that “an employer
covered by workers' compensation does not have a common
liability with the third party” and thus is not a
“person liable” or a “released
person” under the statute. Id. at 851, 852
(holding that an employer is immune from tort liability due
to workers' compensation). As a result, a third-party
tortfeasor may not “reduce his or her own liability by
apportioning some of the fault to the employer, ” but
“a defendant can point to the negligence of the
employer and claim that the employer was the sole cause of
the accident.” Id. at 853.
imply, but have not alleged, that Loveland and Summers were
employed by Dandee and operating in the course of their
employment. Neither have they alleged that this incident was
covered by the Nebraska Workers' Compensation Act. At
this time, Goodyear's affirmative of misuse will not be
Negligence and Strict Liability Claims Based on Insufficient
expert witness, David R. Southwell, claims that one of the
three root causes of the tire's failure was
“[a]ge-related thermo-oxidative degradation of the body
ply and belt skim coats, which substantially compromised the
structural integrity of the tire . . . .” Southwell
Rep. 20, ECF No. 110. Southwell states that there are three
main design measures which may reduce such oxidation:
“[f]ormulation of the inner liner compound, [c]ured
inner liner gauge, and [a]nti-oxidative additives to skim
coat and other compounds.” Id. at 12.
Plaintiffs allege, in part, ...