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$6.8 million verdict restored for negligent tire design

Madison — The state Supreme Court ruled unanimously June 16 that there was sufficient evidence at trial to sustain a jury’s finding that a tire manufacturer, Continental AG, was negligent in the design or production of a pair of snow tires that caused an auto accident that left a Milwaukee woman paralyzed.The court additionally ruled that the trial court did not err when it declined to admit evidence of a covenant not to sue the manufacturer of the vehicle involved in the accident.The rulings stem from a case involving a family vacation that began in March 1991 for Christine and Thomas Morden and their two children. The Mordens left Milwaukee in their Volkswagen Vanagon headed for Florida, driving straight through and alternating the driving duties every 200 miles or so.The Vanagon was equipped with snow tires, because the Mordens had made the journey many times before, and had encountered inclement weather upon occasion in the past.When they arrived near Florida, and while Christine was driving, the Mordens felt a “dip” in the asphalt when they crossed an overpass and returned to the highway, followed by hearing a “pop.” They assumed the tires had blown. Christine lost control of the vehicle and it rolled, eventually coming to rest on the driver’s side. The roof had crushed in, and as a result of the accident, Christine is now a quadriplegic.The rear tires, manufactured by Conti-nental AG in 1979, had been purchased from Mr. P’s Ideal Tire Corp. in Milwaukee about a year and a half before the accident. They did not fit the same specifications as those they had replaced, but Thomas testified that he’d been told that they would work. The tires were overinflated on the day of the accident.The Mordens sued Continental, Volks-wagen, Mr. P’s and the vehicle’s retailer that also serviced it, Ernie von Schledorn Imports Inc. Before the trial, they negotiated a covenant not to sue with VW for a $500,000 settlement. The court ruled that evidence of the settlement was not admissible.After the fourth week of trial, Milwaukee County Circuit Court Judge Francis T. Wasielewski submitted a special verdict to the jury. The jury unanimously found Continental negligent in the design or manufacture of the tires, and that the negligence was a cause for the accident. Christine was also found negligent for her driving, but Mr. P’s and EvS were found not negligent. The jury then apportioned 50 percent of the negligence to Continental and 50 percent to Christine, and awarded her approximately $10.5 million in damages to her, plus $1.2 million to Thomas.At a hearing on the motions after verdict, the court adopted the jury’s negligence verdict and denied Continental’s request for a new trial. The court entered an order that Continental must pay Christine $6.2 million and $636,000 to Thomas — sums reflecting the verdict, minus the reduction for Christine’s negligence, plus costs and interest.The District I Court of Appeals reversed in April 1999, holding that the evidence against Continental was insufficient to sustain the jury’s finding that Continental was negligent in the design and manufacture of the tires. The Mordens appealed, and the Supreme Court reversed. Justice David T. Prosser reminded that when looking at sufficiency of the evidence, the standard of review is narrow: the jury verdict will stand if there is “any credible evidence.” The high court found that evidence.“The Court of Appeals in this case held that the Mordens failed to prove that Continental owed a duty of care to the Mordens because they did not present evidence that Continental knew or should have known that the tires were unsafe. We respectfully disagree. Credible evidence presented at trial suggests that the Continental tires evinced a belt separation problem that made a rupture possible.”Prosser relied upon the testimony of the plaintiffs’ tire expert, who said that the cap ply design is used only if belt separation is likely. “The cap ply functions as ‘a Band-Aid to fix a problem’ and keeps the belts together to reduce separations.”The same expert had additionally testified that a safer design, a “double-wrap” cap splice, could have been used.Prosser wrote, “The jury in this case reasonably could have concluded that Continental’s failure to take the available precaution of using a double-wrap cap splice constituted a lack of ordinary care, even if the record is silent about whether Continental conducted tests on the single-wrap cap splice.”The technology of the day addressed the danger of belt separation, Prosser continued, citing a 1974 steel-belted radial tire patent that warned that this type of tire might fail at high speeds. The court also found it noteworthy that the two failed tires were manufactured at the same time and place, and were identical in design — and they failed at the exact same time in the exact same way.Continental had asked the high court to order a new trial, arguing that the excluded evidence of the covenant not to sue resulted in unfair prejudice. Sec. 904.08 provides that compromises and offers to compromise generally are not admissible; however, the rule permits the admission of the evidence when it is offered for another purpose, “such as proving bias or prejudice of a witness.”Prosser pointed out that the statute is permissive, and that the record reflected that the court had made an appropriate exercise of its discretion.“(E)vidence concerning the VW agreement did not go to the central issue in this case or prevent this case from being fully tried,” he wrote. Moreover, “Continental has not shown that admission of the evidence in this case would have produced a different result. On the contrary, admission of the evidence could have had a prejudicial effect by implying that the Mordens had reached a monetary settlement with one defendant, making it less compelling to find in their favor as against Continental.” The case is Morden v. Continental AG, et al, Wisconsin Supreme Court, No 98-0073, 2000 WI 51.

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