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Susman v. The Goodyear tire & Rubber Co.

United States District Court, D. Nebraska

October 10, 2019

RYSTA LEONA SUSMAN, Both Individually and as Legal Guardian of Shane Allen Loveland; and JACOB SUMMERS, Plaintiffs,


          Laurie Smith Camp Senior United States District Judge.

         This 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.


         Plaintiffs' 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.[1] The following facts appear from the record to be undisputed unless otherwise indicated.

         On May 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.

         On May 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.


         “Summary 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)).

         “The 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)).

         In 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)).

         “At 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, 587 (1986).


         Plaintiffs' 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.[2]

         I. Goodyear's Affirmative Defenses

         In its 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).

         A. Failure to Use a Seatbelt

         Under 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.

         B. Efficient Intervening Cause

         Goodyear 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.

         C. Misuse

         Goodyear 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.

         Goodyear's 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.

         Plaintiffs 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.[3] 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.

         Plaintiffs 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 dismissed.

         II. Negligence and Strict Liability Claims Based on Insufficient Anti-Oxidative Measures

         Plaintiffs' 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, ...

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